Commentary on Massachusetts Special Education Decisions: 1st Quarter, 2012, by Daniel T.S. Heffernan

January 03, 2012

Introduction

This quarter’s eighteen decisions (including three issued in 2011 but not commented upon previously) are an interesting mix to start the new year. Perhaps most notable are two cases, Agawam Public Schools, BSEA #12-1714, 18 MSER 68 (2012), and King Philip,BSEA #12-0783, 18 MSER 20 (2012) which underscore the principle that the district must provide for what is necessary for FAPE, even if that encompasses travel for parents to visit their child’s residential program or services that would assist a young adult transition to a group home setting and supported employment. There are three decisions on challenges to DESE’s assignment of school district responsibility, including one which provides a cautionary tale to parents whose divorce agreements or temporary orders do not reflect the realities of their custody arrangements. Two of these matters were decided, pursuant to BSEA Hearing Rule XII, solely on the basis of documents and all three decided without evidentiary hearings. Several decisions reiterate the “no harm, no foul” view of certain procedural violations, no matter how egregious the violation. As always, the decisions provide insight into why a side prevails in the “battle of the experts” There is an interesting “stay-put” aspect to the decision in Agawam Public Schools, BSEA #12-1714, 18 MSER 68 (2012). There is only one “joinder” decision, where DMH was joined in Whitman-Hanson, BSEA #12-3366, 18 MSER 43 (2012) to allow full relief to be ordered. The applicability of the statute of limitations for IDEA based claims as well as the enforceability of a resolution agreement are addressed in Brookline Public Schools, BSEA # 12-3430, 18 MSER 53 (2012).

Assignment of School District Responsibility

In Fitchburg Public Schools, Narragansett Regional School District, and Massachusetts DESE, BSEA #12-3434, 18 MSER 31 (2012), the assignment of school district responsibility turned on whether and when the student was considered “homeless.” At all relevant times, the student was under the custody of the Massachusetts Department of Children and Families (“DCF”) and the mother resided in Baldwinville (within the Narragansett Regional School District). From 2002 until September 27, 2010 the student lived with his mother, but thereafter in a series of foster homes. On February 27, 2011, DCF placed the student in a Stabilization, Assessment and Rapid Reintegration/Reunification (“STARR”) Program at the Horizon House in Fitchburg and he was enrolled in the Fitchburg Public Schools. Fitchburg found him eligible for special education and placed him in a private placement, the McGrath School, where he continued through the time of the hearing. On April 20, 2011, DCF moved the student to a group home in Rutland, which is within the Wachusett Regional School District (“Wachusett”). DESE responded to DCF’s request for clarification of school district responsibility by determining that: (1) because the student was residing in a group home within the Wachusett, Wachusett was programmatically responsible for the student; (2) on the basis of the “move-in law”, Fitchburg was financially responsible through June 30, 2012; and, (3) Narragansett would become financially responsible as of July 1, 2012. Fitchburg challenged the determination, claiming that because the mother resided in the Narragansett Regional School District (“Narragansett”), Narragansett was financially responsible at all times. The federal McKinney-Vento Homeless Act, 42 USC § 11431 addresses the educational rights of homeless students. DESE advisories on McKinney-Vento policies and procedures include one (Homeless Education Advisory 2004-9) that provides that students in DCF custody or care who are placed into temporary, transitional or emergency living placements awaiting foster care placement are considered homeless. An addendum to the advisory provides that STARR programs are considered temporary, transitional, or emergency housing under McKinney-Vento. Therefore, by attending a STARR program, the student was considered homeless. DESE regulations provide that the school district responsible before the student became homeless remains responsible. Fitchburg’s argument that those regulations are unreasonable because student stayed longer in the STARR program than foster homes failed because the student’s status could not turn on length of stay in a program or home. Fitchburg also sought to have the districts of the foster homes share the responsibility, arguing that they too were temporary, emergency housing. The hearing officer found this argument lacking also, refusing to wade into a determination as to which foster homes, if any, were meant to be only temporary, emergency housing for the student. The hearing officer upheld the assignment of programmatic responsibility of Fitchburg. The hearing officer also affirmed and commented on the undisputed portion of the assignment and affirmed the financial responsibility under 603 CMR 28.10(4)(b) of parent’s district when student lives in a group home - in this case mother resided within Narragansett. However, the “move-in law” (MGL 71B, §5) provides that when a student moves to a new school district on or after July 1 of a fiscal year, the former school district remains financially responsible until the end of the fiscal year. Northampton Public Schools and Massachusetts DESE and Boston Public Schools, BSEA #11-7992, 18 MSER 105 (2012) also involved a question of homelessness and placement in a STARR program and was decided on written submissions. The mother was incarcerated and the student was in the permanent custody of DCF and considered homeless as he moved through various DCF placements. The question raised was whether his brief stay in a Boston foster home and related attendance at a Boston Public School program terminated his homeless status and transferred programmatic and fiscal responsibility to Boston or whether the student’s “district of origin,” Northampton, retained fiscal responsibility. Issues surrounding the district’s responsibility for this student were previously addressed Northampton Public Schools v. Greenfield Public Schools and DESE, BSEA #10-1393 where the hearing officer found that Northampton, as the district within which the mother last resided before becoming homeless, was responsible for student’s educational programming. In January 2011, DCF placed the student in a foster home in Boston, where he stayed until March 30, 2011. He attended the McKinley School in Boston, a substantially-separate public day school from February 14, 2011 through June 2011. During his time at the McKinley, Boston never evaluated him, convened a TEAM meeting, or issued any IEP. On March 30, 2011, DCF placed the student in a STARR residence in Natick. DESE issued its Assignment of School District Responsibility, finding that Northampton was fiscally and programmatically responsible for the student’s education. Applying the same relevant regulations relied upon in the above Fitchburg decision, the hearing officer found that it was clear that the Boston foster home placement was temporary and he remained homeless awaiting placement while he was in Boston. Therefore, Northampton remained fiscally responsible for the student. The last assignment of school district responsibility case from this quarter, Lincoln-Sudbury Regional School District, DESE and Lexington School District, BSEA #12-3149, 18 MSER 108 (2011) involved the issue of school district responsibility for a student with divorced parents living in separate towns. DESE had assigned sole responsibility to Lincoln-Sudbury, the mother’s district. Lincoln-Sudbury challenged the assignment, saying it should be shared with Lexington. The student had attended the residential program at Dr. Franklin Perkins School (“Perkins’) in Lancaster, Massachusetts since June 29, 2010. Prior to that, student was a day student in the Lincoln Public Schools. The mother had sole physical custody and had sole education decision making pursuant to the parents’ divorce agreement. The student was unilaterally placed at Perkins for the 2010-2011 school year and subsequently the district agreed write the IEP for Perkins. Prior to that, he lived with his mother four days per week and alternating weekends, and with his father the rest of the time. While at Perkins, he spent alternating weekends with each of his parents and similarly alternated weekday overnight stays with each parent, essentially spending equal time with each of his parents. Lincoln-Sudbury sought to rely on 603 CMR 28.10(2)(a), which provides that if a student of divorced parents living in separate districts lives with both parents, and the student’s IEP calls for a residential placement, the districts will share equally the cost of that placement. However, 603 CMR 28.10(8)(c)5 provides: “if the parents are divorced or separated and one parent has sole physical custody, then the school district where the student resided with the parent or the school district of the parent who has sole physical custody shall be responsible and shall remain responsible in the event the student goes into the care or custody of a state agency.” Here, Lincoln-Sudbury’s argument failed because at the time the district provided the IEP for Perkins, the mother had sole physical custody of the student, and Lincoln-Sudbury therefore had sole fiscal responsibility. While this dispute was exclusively between school districts over the funding for an established residential placement, parents and their advocates should take heed of it. Parents seeking district funding for an expensive residential or day program will have an easier time of it when the cost of such a placement will be shared by two districts. Therefore, divorce agreements or temporary orders should reflect the reality of the situation. In this case, while there may be very good reasons why the temporary orders did not reflect the true custody arrangement of the parties, that documentation would have prevented parents appealing to both towns to fund the Perkins placement if placement were an issue.

District Fails in Challenging Residency

The custody arrangement of separated parents was questioned by the district in Agawam Public Schools, BSEA# 12-2829, 18 MSER 45 (2012). The student was placed at Forman School in Connecticut under an accepted IEP. Parents separated and the father relocated to Georgia with student’s younger brother. Parents tried unsuccessfully to sell their home and eventually took it off the market. The mother worked as a flight attendant for an airline whose home base was in Atlanta. Consequently, and as is typical in her profession, she maintained an Atlanta “crash pad,” an apartment that she shared with numerous flight attendants. Agawam challenged parents’ residency. In a case of “seller beware,” a school district employee accompanied by a woman who had known Agawam’s superintendent “since the fourth grade and (with whom she has) maintained a romantic relationship for the past five years” masqueraded as potential buyers and toured the family home in Agawam. They testified at hearing that they found the home to be “non-livable,” which they defined as, at a minimum, lacking two televisions and one computer. Agawam sought to buttress their case with the hearsay testimony about the opinion of a “neighbor,” who turned out to be an estranged family member with whom the parents had not spoken in a year and additionally weak evidence. The mother and her witnesses successfully rebutted this “evidence” with utility and other bills, saying she owned only a laptop, copies of her travel schedule, bank activity in Agawam and testimony of others. Adding to the absurdity of this action by Agawam was the fact that the period in dispute was six weeks, since Agawam had no evidence to question residency after that time period.

District is Obligated to Provide What The Student Needs, Even if It Is Addressing Behavior at Home and the Community, or Transportation of Parents to the Program

Those with experience in special education law clearly understand that FAPE extends beyond reading, writing and arithmetic and can include a wide array of services addressing a student’s development in areas other than academics. Two cases this quarter further illustrate this principle. Agawam Public Schools, BSEA #12-1714, 18 MSER 68 (2012) was a follow-up to an earlier BSEA decision arising out of parents’ request for a stay put order when the school where their daughter was attending, Bromley Brook School in Vermont, shuttered its doors. The BSEA ordered Agawam to reimburse the parents for their “self-help” placement of the student at a comparable residential program, Talisman Academy in North Carolina. Agawam had reimbursed parents for the tuition of Talisman but refused to reimburse for costs of transporting student and parents between Agawam and Talisman. Talisman Academy is a year round therapeutic boarding school. Its program description provides: “Due to our core areas of growth for our students, each break and parent weekend is designed to provide our families and students, the opportunity to transfer their learned skill sets by practicing specific goals within the home environment¼.The long breaks are great opportunities for students to practice what they have been learning and for parents to work on holding higher or more realistic expectations for their children.” There was no contrary evidence submitted that these parent weekends and student trips home were not crucial to Talisman Academy’s program. Agawam was ordered to reimburse parents for these expenses for two reasons. First, since Agawam had traditionally provided student’s transportation to and from various residential programs, this service was part of the stay-put rights that transferred to Talisman, even though it was located at a much greater distance than her previous programs. Second, the out-of-pocket expense were clearly associated with the provision of necessary and beneficial educational services to the student. Therefore, reimbursement and future funding of the transportation was required because it was a “related service” necessary for the student to benefit from her special education program. 34 CFR 300.139(b); 603 CMR 28.05. King Philip, BSEA #12-0783, 18 MSER 20 (2012), involved the appropriate transition program for a twenty-one year old woman with autism, significant cognitive limitations and a number of medical difficulties. Student had attended the Bridge Program, a substantially-separate day program within the South Coast Collaborative, for nine years. King Philip proposed continuing her placement in the Bridge Program, touting the progress she had made in the year. The parents sought placement in an intensive residential program to prepare her for transition beyond school. King Philip introduced evidence that the student’s behavior at school, manifested in slapping, limited tolerance for work and biting, had improved. However, the hearing officer noted that behavior at school was not an area of current concern and therefore not relevant to the appropriateness of her future program. The student had also made progress in academic and non-academic areas. However, the hearing officer noted that these gains had been “exceedingly limited, particularly when one considers the time period over which the gains have been made.” The two crucial inquiries in this case were: (1) the student’s capacity to learn; and, (2) the skills she needed to transition beyond school. The student had not acquired any adult independent living skills, such as dressing herself, showering, brush her teeth, or using a toilet. She exhibited aberrant behavior at home and during community outings with her family. Her behavior in home and on family trips had regressed during the past year. At home she was frequently self-injurious and aggressive towards her mother and strangers. Mother had become afraid of being alone with the student. King Philip responded that student had limited cognitive abilities and therefore could not be expected to achieve more. However, parents’ experts met this issue head-on and testified convincingly that a student with her profile would have likely made substantially more progress and be at a substantially higher level with respect to both academic skills and functional abilities. Parents’ experts were credited by virtue of their more extensive experience and expertise as well as by their more detailed and comprehensive knowledge of the student. King Philip also was unsuccessful in casting the home issue as one simply of safety of the mother, and therefore, not their responsibility. This position was untenable for several reasons. First, King Philip’s proposed IEP provided for services in the home to address independent living skills and social/emotional skills. Second, it was axiomatic that the ability to generalize skills is fundamental to transition because transition skills can only be useful if they can actually be applied where student will be living and working after secondary school. If the student cannot use the skills within the home and community, what’s the point of them? Even if the student was bound for residential living such as a group home and supported employment or recreation in the community, she would still need to acquire these skills to successfully transition to that situation. Third, King Philip sought to blame the mother as unmotivated to address the student’s behavior and therefore, maintained that it was her fault that the student had not acquired them. The hearing officer found it inconceivable that the mother would not avail herself of any help she could get in addressing these behaviors. The hearing officer ordered King Philip to find and fund an appropriate residential program. It would be insufficient to train the mother how to respond to her daughter. Instead she needed intensive services across all environments to both bring her behaviors under control and make effective progress towards her independent living skills.

DMH Invited to Join the Party

The district in Whitman-Hanson School District, BSEA #12-3366, 18 MSER 43 (2012) sought to join DMH to the proceedings, brought by the parents against the district to obtain a residential placement. The student was “stuck” in a locked Intensive Residential Treatment Center because DMH and Whitman-Hanson disagreed as to whether the student requires residential services for educational reasons and who should fund any required residential placement. While acknowledging that it was rare to ultimately order a state agency to provide services, See Lowell Public Schools and Massachusetts Department of Children and Families, BSEA #12-1912 (2011) and Medford Public Schools, BSEA #01-3941, 7 MSER 75 (2001), here it was appropriate. DMH had already provided intensive DMH services and the hearing officer did not want to risk the possibility that the student might not be able to access services ordered from Whitman-Hanson without services from DMH.

Stay-Put Does Not Arise from District Paying for Substitute Private Services

Ipswich Public Schools and Tallulah, BSEA #11-9243, 18 MSER 40 (2012) involved an unusual stay-put issue. The 2009-2010 IEP provided for summer tutoring. When Ipswich became aware in spring 2010 that it could not provide this service to the student, it offered to fund fifteen fifty-minute tutoring sessions at Commonwealth Learning Center (“CLC”). This was not part of a team meeting or an IEP. The parent accepted this substitute. The subsequent IEP called for tutoring in the summer. Parent rejected this portion of the IEP and asserted stay-put rights of tutoring from CLC. A new IEP was offered in March 2011 that found student ineligible for extended year services. The parents did not respond to this IEP and it was therefore deemed rejected. Ipswich offered, in writing to the parents, to provide tutoring for student at the high school and offered a schedule for that tutoring. The hearing officer held that there was no “stay-put” right to tutoring from CLC. The funding of CLC tutoring in summer 2010 was as a proactive measure by Ipswich in response to an anticipated personnel shortage. It was not part of any IEP or team meeting. The physical location of the tutoring could not support the establishment of stay-put because “stay-put” attaches to the type and level of special education services and program, and not to a specific physical location.

District Ordered to Reimburse for Unilateral Residential Placement

School District, BSEA #12-0132, 18 MSER 1 (2012), involved a claim by parent for reimbursement and funding of a residential placement. Pursuant to BSEA Hearing Rule XII, the matter was decided solely on the basis of documents. The student had chronic PTSD, an eating disorder, ADHD, borderline personality disorder, major depression, and a learning disorder. The student exhibited substantial emotional and behavioral difficulties for several years and had two psychiatric hospitalizations. She also refused to go to school for a period in eleventh grade. In spite of this and the parent’s request, the district had failed to evaluate her for eligibility for special education. In summer 2011, the student began attending the Arlington School pursuant to a partially-accepted IEP. The Arlington School is a private, therapeutic day program located on the grounds of McLean Hospital. Parent unilaterally placed student at Mill Street Lodge (“Mill Street”), a residential program also on the grounds of McLean Hospital. The student demonstrated success while hospitalized and using Dialectical Behavioral Therapy (“DBT”). Clinicians working with the student concluded that without residential treatment from a team proficient in DBT, student would rapidly deteriorate leading to hospitalization and negatively impacted her ability to progress in school. It was clear to the hearing officer that her emotional and behavioral difficulties had a direct and substantial impact upon her ability to access an educational environment. The student had a well-established track record of improvement in DBT residential settings and rapidly decompensating when such services were removed. The consistent opinions of those working directly with student were “unrebutted, credible and persuasive.” Her effective and meaningful progress in her short stay at Mill Street helped establish the appropriateness of that placement. As such, the district was ordered to reimburse the parent for student’s placement at Mill Street and to prospectively place her there. While Brockton Public Schools, Department of Youth Services and Department of Elementary and Secondary Education, BSEA #11-3408, 18 MSER 7 (2012), was pending, the parent had two other hearing requests before the BSEA. The disputes centered around the appropriate educational services for a student in the custody of Massachusetts Department of Youth Services (“DYS”). The matter was unusual in that both Brockton Public Schools and DYS shared responsibility for educating the student, an eighteen-year-old man residing in the Westboro Secure Treatment facility (“Westboro”) at the time of the hearing. He carried numerous diagnoses, including bipolar disorder, PTSD, ADHD, Generalized Anxiety Disorder, Learning Disorder, Trauma History and Academic Problems. Brockton was assigned school district responsibility based upon the mother’s residence. In somewhat of a scattershot approach to the dispute, the parent’s claims essentially boiled down to the parties failing to provide an appropriate education to the student. One significant dispute was related to the student being placed on “program restriction” at Westboro; whereby student receives consequence for serious offenses. The hearing officer deemed program restrictions to be part of Westboro’s overall behavior modification plan and not an educational practice even though the student missed a significant amount of school as a result of program restriction. The hearing officer also noted the effectiveness of the multiple program restrictions meted out to student, noting that his behavior, attitude and work output improved. Parent alleged that DYS impermissibly blocked Brockton from providing FAPE. The hearing officer noted that IDEA does not limit the ability of law enforcement agencies and courts to determine the setting for services for students committed for criminal behavior. The hearing officer failed to apply the extensive substantive and procedural safeguards accorded students with special needs when facing disciplinary actions. Instead, the hearing officer took note of the legitimate safety concerns and stated that student was not deprived of educational services while on program restrictions because he could still hear the class while in the hallway and he was given the opportunity to keep up with the classwork. The parent also challenged the qualifications of those providing services to the student. This claim failed given the combination of the typical deference given to school districts about personnel decisions as well as the fact that the parent did not produce evidence that particular qualifications were required. The last claims included challenges to the development and substance of Brockton’s IEP. These challenges fell short because the evidence supported Brockton’s position that parent was accorded the opportunity to participate in drafting the IEP and the services provided were appropriate and effective.

Forty-Five Day Placement Required to Accurately Assess the Needs of Student

In King Philip Regional School District, BSEA #12-2427, 18 MSER 35 (2012), the district sought a forty-five day extended evaluation of the student. Student’s grandmother opposed the evaluation, stating that King Philip had nothing to offer the student and she would be homeschooling her son. The sixteen-year-old student had ADHD, a seizure disorder, social pragmatic deficits and relative weaknesses in oral language skills and processing speed. He had been educated for years primarily in substantially-separate classrooms. His freshman and sophomore year IEPs placed him in the Transitions Program at King Philip Regional High School, a program designed for students with autism spectrum disorders or communication disorders. Student demonstrated difficulties keeping up with the academics and in social interaction with peers. His grandmother transferred him into the Tri-County Vocational High School. After only six weeks, she transferred him back. Upon his return, he demonstrated more difficulties. He starting missing school in May 2011 because of seizures. The TEAM reduced his hours and offered home tutoring, but the grandmother did not respond to this offer. They proposed a forty-five day extended evaluation at BICO or South Shore Collaboratives. The student stopped attending school altogether after May 31, 2011 and had not returned to school as of the date of the hearing, December 14, 2011. The grandmother left the hearing before its completion and did not call any witnesses. The hearing officer was convinced that a forty-five day extended evaluation was necessary to understand the nature and extent of the student’s educational deficits and how they could be addressed. King Philip had not seen the student in class for seven months and simply conducting some evaluations of the student would not be sufficient. He required not only comprehensive, formal testing but also daily observations of student and his social and behavioral interactions.

A Motion To Dismiss Narrows the Disputed Issues on Statute of Limitations and the Applicability of a Previous Resolution Agreement

Brookline Public Schools and Earl, BSEA # 12-3430, 18 MSER 53 (2012) was a decision on Brookline’s partial motion to dismiss centering around the terms of a resolution agreement. The parents unilaterally placed student as a residential student at Eagle Hill school in September 2009. Eagle Hill is a non-approved private special education school. The parents filed a hearing request on July 30, 2010 but executed an agreement during their August 6, 2010 resolution meeting. The Resolution Agreement provided that Brookline write an IEP for the day placement at Eagle Hill for the 2010-2011 school year, fund the day tuition there and reimburse the parents for transporting student to and from Eagle Hill on weekends and holidays. The parents agreed to assume all the other costs associated with student’s placement at Eagle Hill. The parents thereafter withdrew their hearing request, stating that “the parties have executed a Resolution Agreement regarding the 2010-2011 school year.” In their November 21, 2011 hearing request, the parents sought reimbursement for both the day and residential costs of Earl’s Eagle Hill placement for the 2009-2010 school year, and reimbursement for the residential costs of student’s 2010-2011 Eagle Hill placement. Brookline moved to dismiss parents’ claims for the 2009-2010 school year on statute of limitations grounds and dismiss the 2010-2011 claims because they were barred by the resolution agreement. Concerning the statute of limitations, Brookline referenced the two year statute of limitations provided for in 20 USC §1415(f)(3)(C): “A parent or agency shall request an impartial due process hearing within 2 years of the date parent or agency knew or should have known about the alleged action that forms the basis of the complaint. ” The only two exceptions to this statute of limitations, 20 USC §1415(f)(3)(D), are if the school district misrepresented or withheld information - neither present here. The hearing officer dismissed the parents’ argument about Brookline’s continuing wrong of refusing to offer placement accorded an additional grounds for tolling the statute of limitations. While such continuing representation or treatment has been held to extend the statute of limitations in professional misconduct cases, the hearing officer refused to apply this to IDEA based claims. Therefore, the statute of limitations clearly barred parents’ claim for reimbursement before November 21, 2009. However, Brookline sought to expand the statute of limitations to include all claims for the 2009-2010 school year, reasoning that parents should be foreclosed from recovering for a time period that falls within the two-year statute of limitations. The hearing officer found no authority to shrink the IDEA’s mandated two-year statute of limitations. Concerning the claim for the residential cost of student’s placement for the 2010-2011 school year, the hearing officer first acknowledged, citing Masconomet Regional School District, 16 MSER 408 (2010), that he had the authority to interpret and enforce resolution agreements. In this one, there was clearly a “quid pro quo” whereby parents received the benefit of the day tuition for the 2011-2012 school year in exchange for relinquishing their claim for residential funding.

Day Placement Cases Illustrate the Need for Well-Founded Expert Opinions

Northampton Public Schools, BSEA #12-0250, 18 MSER 57 (2012) involved an eleven year old who had been “extensively evaluated.” He had been diagnosed with ADHD, learning disorder, apraxia and cognitive disorder. Northampton offered placement in its Bridge Street School’s Learning Disabilities Program (“LDP”). The parents sought placement in the Curtis Blake School, a private special education program for students with language based learning disabilities located in Springfield. Student was evaluated by Children’s Hospital in April 2011 and the hearing officer found that parents’ entire case for placement at Curtis Blake rested on this evaluation. However, as an opinion for establishing the necessity of the Curtis Blake placement, it was fatally flawed. The evaluator had not observed the LDP program, had not observed student in school, nor spoken with any of his classroom teachers. Furthermore, the student was found to have made measurable and strong progress putting him at or within a grade level in many areas. Longstanding therapists and teachers helped establish that student had “most definitely made educational progress.” In addition, his teachers gave numerous examples of how the student benefitted from being in mainstream classes. Therefore, Northampton’s program was held to provide FAPE. The hearing officer in Greenfield Public Schools, BSEA #12-1305, 18 MSER 63 (2012) upheld the district’s proposed program, but also ordered the district to modify it to make it comply with FAPE. Student was a fourteen-year-old boy diagnosed with ADHD, OCD, dysgraphia, executive functioning difficulties and memory deficits. He had attended the Hampshire Educational Collaborative (“HEC”) since 2008. It was undisputed that he progressed well in the HEC programs. Greenfield proposed that student attend the Transitions Program at Greenfield High School but his guardians sought to continue him at HEC. The school district filed the hearing request seeking a determination that its IEP, providing for placement at the Transitions Program, provided FAPE. The hearing officer noted that the profiles of the students in the Transitions Program were quite similar to the student and the students at HEC. There was persuasive testimony about quality of the Transitions Program and how it could be tailored to meet the student’s needs. In contrast, the student’s guardians testified that he should remain at HEC because he had done well there. There was no evidence that the Transitions Program was inappropriate or inadequate. The fact that the student did so well at HEC convinced the hearing officer that the proposed IEP was inadequate in its then current form. The IEP needed to be amended to include a comprehensive transition plan.

Outside Placement Ordered, But Not The One Chosen by Parents

The parents in Pembroke Public Schools, BSEA #12-0507, 18 MSER 73 (2012) sought placement as a residential student at Kildonan School (“Kildonan”) in New York state. The thirteen year old seventh grade student had average intellectual ability but significant language-based learning disabilities affecting his performance in reading, writing, spelling and math. He also experienced problems with anxiety and coping with stress. Parents’ independent neuropsychologist opined that the student was essentially a non-reader. Kildonan is a specialized day and boarding school for children with at least average intellectual ability and dyslexia. The parents maintained that there was no appropriate day program with reasonable commuting distance from Pembroke. While Pembroke’s IEP offered a “plethora” of services and accommodations, the student had not acquired the basic reading and writing skills that he needed to succeed academically and live independently. In addition, he was unlikely to acquire these under the current program and with his current trajectory. The hearing officer relied on unrefuted testimony that student had not acquired functional reading skills, such as being able to read a menu or a street sign, or write a simple phone message. However, while the parents met their burden that student’s proposed IEP and program was inappropriate, they failed to demonstrate that student required placement in an unapproved, out of state, residential program. While parents may not have been able to locate an appropriate program, it did not mean that such a program could not be located by the district with its greater resources. Therefore, Pembroke was ordered to locate or create a “public or private educational placement for Student that is a fully-integrated language-based program designed to meet the needs of children with at least average intelligence who have severe dyslexia, and are several years behind their grade level in basic reading and writing skills.” Brookline Public Schools, BSEA #12-4227, 18 MSER 86 (2012) involved a dispute over whether the residential programs proposed by Brookline were appropriate or whether Brookline needed to fund the residential program preferred by the parent. Parent also complained that several procedural violations by Brookline undercut the validity of Brookline’s position. The eleven-year-old student had been given numerous diagnoses through the years, including PDD, Non-Verbal Learning Disorder, ADHD, PTSD, Oppositional Defiance Disorder, Mood Disorder and Borderline Personality Disorder. She had several psychiatric hospitalizations and had been placed as a day student at the Manville School and Pathways, both private day programs. There was no dispute between the parties that student currently required a residential placement. The dispute centered around what program. Brookline offered placement in the Knight Children’s Center (“KCC”) or alternatively in St. Ann’s Home. Parent sought placement at Walden Street School (“Walden”). Two well-worn principles were reiterated in this case. The first is that to establish a case for placement in a program not proposed by the school district, the focus is mainly on the appropriateness of what the district is offering. Second, such cases often come down to a battle of the experts. The hearing officer discredited parent’s expert because of inaccuracies in his testimony about the features of KCC, such as the peers the student would interact with and the availability of community activities. He also based his opinion of the program on his interview with the program director as opposed to an observation of the program. The hearing officer was also critical of the expert’s short history with the student and the fact that he had not spoken with any of the student’s current or past teachers. KCC was found to be an appropriate placement for student based on the availability of a step down program for the student, as well as the program’s expertise of working with similar students. While not required to address the appropriateness of St. Ann’s or Walden, the hearing officer did. She found that there was insufficient evidence that St. Ann’s, offered by Brookline in what the hearing officer deemed to be a laudable and “desperate attempt” to satisfy the parent, would not be adequate. Regarding Walden, the hearing officer found that the student would not have intellectually age appropriate peers. The hearing officer dismissed several procedural violations by Brookline. In response to parent’s criticism that the KCC and St. Ann’s placement were not discussed in a team meeting, the hearing officer opined that the parent had disengaged from the team process anyway, and would only consider the Walden placement. In response to parent’s complaint that student’s referral packet had been sent to KCC without parent’s consent, the hearing officer noted that the packet was redacted and reflected good intentions on Brookline’s part. Parent also complained that Brookline’s offer of two distinct programs on the placement page was a procedural violation. The practical impact of this is problematic for parents where they are trying to evaluate the district’s proposal. The hearing officer brushed this aside by saying the programs were similar and parent could have sought a continuance to have the opportunity to evaluate both programs. Doing so in this case would delay the parent from getting the appropriate placement for her daughter who was in serious need. It should be noted that the hearing officer took pains to note in some detail things that cast the mother in a bad light but that should have been irrelevant to her decision about the central issue of the case—the nature of the student’s needs and the appropriateness of alternative programs/placements for that student. The negative things included the fact that the parent was unable to attend the entire hearing, the parent seemed disengaged from the team process because she would only consider Walden as a placement, and that the parent threatened Manville and Brookline with the involvement of her lawyer. Parents should therefore be cautious about what impression a hearing officer might form from matters that are not seemingly relevant to the substance of the dispute with the school district.

District Held to Have Complied with a Prior Order

Hudson Public Schools, BSEA 311-6562c, 18 MSER 82 (2012) addressed whether Hudson had complied with the hearing officer’s earlier decision. The earlier decision ordered Hudson to assess the student’s spelling deficits and provide appropriate programming as well as goals and benchmarks relating to spelling. At hearing the parents agreed that Hudson’s spelling assessment satisfied Hudson’s obligation, seemingly resolving this issue in Hudson’s favor. However, during closing argument, parents raised an objection to the assessment. Since the objection was to a statement in the evaluator’s testimony that the services should be driven by the assessment, the hearing officer found nothing to undercut the appropriateness of the assessment. Concerning the implementation of the recommendations, Hudson provided the programming and goals called for in the assessment and, therefore, the remaining challenges to Hudson’s compliance failed.

Commentary on Massachusetts Special Education Decisions: 4th Quarter, 2011, by Lawrence Kotin

December 03, 2011

This quarterly Commentary reviews eleven decisions by the Bureau of Special Education Appeals (BSEA). Five decisions involve the issue of “stay put,” offering useful guidance on that issue. Three concern the issue of assignment of responsibility for students by the DESE, and three others decide substantive issue of placement.

Hearing Officer Refuses to Elevate Form Over Substance in Determining Stay Put

In Re: Taunton Public Schools and Rahul, BSEA #12-0399, 17 MSER 329 (10/26/11), concerned a sixteen-year-old student diagnosed with autism, tuberous sclerosis, a seizure disorder, and pica. He was non-verbal and did not communicate independently except for a few hand signs. The last accepted IEP provided for 35 hours of 1:1 ABA instruction, 52 weeks per year. The services were provided partially in school (4 hours per day) and partially at home (3 hours per day) by the same provider. During the winter and spring of the student’s last year in middle school, the district developed an IEP for his first year of high school, providing for the same number of hours of ABA therapy as he had been receiving, but changing the setting to six hours per day in a substantially separate classroom in the high school and one hour per day at home. The parents rejected the IEP but accepted the placement. Four days later, they sent an e-mail to the school, explaining that they had accepted the placement because they wanted their son to attend high school in his own community but that they disagreed with the decision to reduce and reallocate the home ABA services. In addition, they objected to the placement because it was in a classroom that they could not evaluate because it did not yet exist. They ended by explicitly invoking their son’s “stay put” right. During the summer, the parents and district met to develop a transition plan for the student’s entry to high school. Part of the plan included the student’s extended year program. The parents accepted the plan and then revoked their consent at the beginning of the school year because they were dissatisfied with the space available at the high school for instructional services. The Team reconvened shortly thereafter and proposed an IEP offering a full-year, 24-hour-per-day residential program. The district asked the parents for permission to send referral packets. The parents rejected the IEP and refused permission for referral packets to be sent. The district requested a hearing on the issue of placement and moved for an interim ruling designating the student’s “stay put” placement pending the resolution of the placement dispute. The district took the position that, by initially accepting the placement at the high school and accepting the transition plan, the parents agreed to the change of placement proposed in the IEP, despite the parents’ subsequent clarification of their actions and rejection of the IEP and placement. The Hearing Officer ruled that the student’s “stay put” placement was the IEP and program previously agreed to by the parents, providing for the 1:1 services to be provided 3 hours per day at home and 4 hours per day in school. In so ruling, the Hearing Officer observed that acceptance of the school’s arguments would elevate “form over substance,” since the parents made clear that they did not intend to accept the classroom placement offered in the IEP nor did they intend to alter the manner in which the services were being provided. Of importance to the Hearing Officer was that the proposed classroom did not exist and the student had not attended it, so having the student return to the services specified in his previous IEP would not be disruptive for him. The Hearing Officer regarded as inconsequential the fact that the parents did not use the placement form to explain their decisions and register their rejection, but did so by e-mail instead. Finally, the Hearing Officer found that the subsequent IEPs were designed to be temporary “bridge services” and not true placements, so they were not relevant to the “stay put” determination. The lesson to be learned from this decision, for both parents and school districts, is that relying on technical errors and minor deviations from normal practice is unlikely to enable a party to prevail. The emphasis should be on the substance of what is intended so that the ultimate outcome will address the needs of the student, rather than reward the winner of a procedural contest (particularly when the loser of such a contest would be an unsophisticated parent who lacks the advantage of having been trained in the use of the special education regulations and forms). Here, the import of the parents’ responses was clear enough and was consistent across time. The hearing officer correctly rejected the district’s hypertechnical arguments and ensured that the student received the important protection that “stay put” provides.

Form Over Substance in Determining Stay Put? You Be the Judge

In In Re: Hampden-Wilbraham Regional School District, BSEA #12-1091, 17 MSER 335(11/08/11), the parents filed for a hearing seeking placement at the Curtis Blake School for their son, a fifth-grader with a language-based learning disability. Prior to fourth grade (2010-2011 school year), the parents had filed a similar hearing request but ended up accepting the district’s IEP. That IEP specified an inclusion program with pullouts. The parents stated that a principal reason for their acceptance of the fourth-grade program was that the classroom teacher formerly had taught at Curtis Blake and was experienced in teaching children with language-based learning disabilities. This teacher was responsible for all of the student’s Grid B services as well as a 1:1 tutorial for reading and language arts. It was undisputed that the student made effective progress during fourth grade. It does not appear that the fourth-grade IEP specified a teacher who was trained by Curtis Blake. For fifth grade (2011-2012 school year), the student was assigned to a regular education classroom taught by two master’s-level teachers, both of whom had experience teaching students with language-based learning disabilities. Arguably, the services offered in the fourth and fifth grade IEPs were comparable. The parents rejected the IEP proposed for fifth grade, seeking placement at Curtis Blake. The stay put placement offered by the district for the student was the 2010-2011 IEP, except the services were provided by the fifth-grade staff and not the former Curtis Blake teacher. The parents filed an interim motion for a determination of stay put, taking the position that the implementation of the former fourth-grade services in the fifth-grade classroom failed to satisfy the stay put requirement. The parents contended that the district had created a “unique” placement for fourth grade by providing a former Curtis Blake teacher and that the district had represented that the placement was unique in its response to the fourth-grade hearing request The parents contended further that the district offered this particular teacher to induce the parents to forgo the earlier hearing, which the parents did based on the district’s fourth-grade offering. In addition, the parents reported that the hearing officer in the former case told them during a conference call that they would have a difficult time prevailing at a hearing for placement at Curtis Blake where there was a former Curtis Blake teacher teaching the challenged classroom. For all of these reasons, the parents argued that stay put principles required a former Curtis Blake teacher, or her equivalent in training and experience, as the fifth- grade teacher pending the resolution of the dispute. In denying the parents’ motion, the hearing officer stated the well-settled principle that a district enjoys wide latitude in choosing its staff, “except in the unusual circumstance where the child’s needs are so uncommon or severe that higher than normal qualifications are required or where the child’s right to FAPE is implicated.” 17 MSER at 337 (citing prior cases). Finding that “the Parents have presented no factual basis to conclude that either circumstance exists here,” the hearing officer declined to “second-guess the School’s choice to provide Student with different classroom teachers for fifth grade than it did for fourth grade.” Id.In so ruling, the hearing officer gave no weight to the district’s pleadings in the prior case or to the comment of the prior hearing officer during a conference call. As the BSEA has explained, the central inquiry in a stay-put dispute “is the actual educational impact upon the student as a result of any change of services or setting.” Uxbridge School District, BSEA #11-1115, 16 MSER 334, 336 n.15 (2010); see also, e.g., Malden Public Schools, BSEA #04-3258, 10 MSER 438, 443 (2004)(framing the issue as whether the disputed service was a “fundamental feature” that was “centrally important” to the student’s program). In this case, the hearing officer based her decision on the parents’ failure to show “that a Curtis Blake trained teacher is an essential element of the Student’s program” or “that Student’s last agreed IEP could only be implemented by such a teacher.” 17 MSER at 337. Particularly where a specific program feature is not spelled out in the last agreed-upon IEP, parents and their advocates must be prepared to make such a showing. In this case, while the parents might well have had an uphill battle in any event given the district’s discretion in assigning staff, it does not appear that they offered much if any evidence as to the importance of the Curtis Blake-trained teacher to the student’s program. In those circumstances, it is not surprising that the hearing officer reached the result she did.

State Department of Children and Families Must Observe the Requirement of Stay Put, As Hearing Officer Once Again Looks beyond the Form to the Substance

In Re: Lowell Public Schools and Massachusetts Department of Children and Families, BSEA #12-1912, 17 MSER 322 (10/19/11), involved a twelve-year-old student in the custody of DCF who had multiple disabilities, including retinopathy of prematurity, cerebral palsy, microcephaly and hypertonia resulting from a premature birth. As a result of prior litigation, the parent, the district and DCF had entered into a settlement agreement providing for residential placement at the Perkins School for the Blind for one school year, 2008-2009. The agreement specified that the district would be responsible for the day portion of the program, with DCF responsible for the residential portion. Following the end of the 2008-2009 school year, the student continued in the Perkins placement for two additional years, with the district and DCF continuing to share the cost under the terms set forth in the 2008-2009 agreement. For all three years, the IEPs referenced this cost-sharing arrangement. At the end of the third year, DCF announced at a Team meeting that it would no longer fund the residential portion of the program. The IEP resulting from that meeting, for the 2011-2012 school year, specified placement in a day program at Perkins and did not mention a residential placement. At the time of the hearing, the student was attending Perkins as a day student and living at home with her mother. The student’s guardian ad litem rejected the IEP in part because it no longer referenced a residential placement. In September 2011, the student filed a hearing request, seeking joinder of DCF and a stay put order requiring DCF to fund the student’s residential services at Perkins. At the outset, the hearing officer decided that he had the authority to consider the terms of the settlement agreement, noting that every federal court that has considered the issue has agreed that hearing officers had such authority. He then decided that DCF was subject to IDEA’s stay put requirements. As he stated, “When DCF and Lowell jointly funded Student’s placement at Perkins through the Settlement Agreement initially and then through IEPs for two subsequent years, DCF became inextricably involved with Student’s special education and provided special education services to Student.” 17 MSER at 325. DCF attempted to argue that it was not responsible to fund the Student’s residential services because the last agreed-upon IEP was for a day program. The hearing officer found, however, that that IEP was replete with references to residential services and that, “when read in its entirety and within the context of the history of this dispute, [it] clearly contemplates that Student would receive her education within an integrated residential education program jointly funded by Lowell and DCF, making this her stay put placement.” 17 MSER at 325. The fact that “the residential and day portions of Student’s placement at Perkins do not function independently of each other,” but rather “interrelate and support each other,” was central to the hearing officer’s conclusion. The hearing officer then found that DCF’s discretion in offering, modifying and terminating its services, and the settlement agreement’s acknowledgment that DCF might do so, did not override the student’s right to stay put. The hearing officer found that DCF did not enjoy unfettered discretion in choosing its providers where, as here, “DCF’s obligations under stay-put can be fulfilled in only one way,” i.e., by continuation of the residential services at Perkins. 17 MSER at 327. Turning to the settlement agreement, the hearing officer declined to imply any waiver of the student’s right to stay-put from the acknowledgment of DCF’s discretion. As he stated, any waiver of stay put would need to be “clear and specific,” which was not true of the contractual language in this case. 17 MSER at 328. This is an important decision affirming the jurisdiction of hearing officers to require state human services agencies to adhere to the requirements of IDEA in general, and the requirement of stay put in particular. The decision also provides useful guidance regarding the BSEA’s ability to interpret and enforce the terms of settlement agreements.

Hearing Officer Determines Stay Put and Orders Reimbursement, Where Last Agreed-Upon Program No Longer Exists

In Re: Agawam Public Schools and Pilar, BSEA #12-1714, 17 MSER 319 (10/07/11), concerned a fifteen-year-old student with multiple mental health diagnoses and a history of related hospitalizations and residential therapeutic educational placements. For the 2010-2011 school year, she attended the Bromley Brook School in Vermont, a year-round therapeutic residential school for students with needs such as hers. Bromley Brook was not approved by DESE. An accepted IEP for the period March 8, 2011-March 11, 2012 provided for a year-round residential therapeutic educational placement. During the previous year, the district had reimbursed the parents for tuition at Bromley Brook and made direct payments to the school as well. In late March 2011, the parents learned and notified the district that Bromley Brook would be closing on July 1, 2011. A Team meeting was held on May 18, 2011. Packets were sent to seven residential therapeutic schools. In mid-June, the parents applied to Talisman Academy, a North Carolina school that was similar to Bromley Brook. It was not approved as a special education program either in Massachusetts or in North Carolina. After appropriate notice to the district, the parents placed the student there, beginning July 2, 1011. As of that date, the student had not been accepted by any one of the schools to which packets had been sent, nor had the district proposed an IEP or placement. When the Team reconvened on July 25, 2011, the district proposed sending packets to some additional residential programs. As of the date of the hearing on the motion for stay put, the Team had not reconvened and no IEP or placement had been offered. The parents filed a motion for stay put at Talisman Academy, independent of any underlying IDEA dispute. The district defended by alleging that the parents had failed to cooperate with the admissions process at various schools; that Talisman was not approved; and that stay put does not apply when the student’s program became unavailable for reasons that were not the result of any school district action. The hearing officer rejected each of these arguments. The hearing officer began by articulating the established principle that, when a student’s last agreed-upon placement is no longer available, the district must locate a “comparable” placement. The parties agreed that the educational services and setting at Talisman were comparable to those previously available at Bromley Brook, and the hearing officer so found. The hearing officer rejected the district’s allegations of lack of cooperation by the parents. She stated, in no uncertain terms, that such considerations are irrelevant to the stay put analysis. As she explained, “’Stay put’ is not an equitable remedy. It is a procedural guarantee.” 17 MSER at 321. In determining what constitutes a comparable placement for “stay put” purposes the Hearing Officer does not consider the motivations or degree of cooperation between the parties. Neither does she consider the fiscal, programmatic or staff resources available to them, or even the hardship that might result to the adult parties from the “stay put” placement. The sole measure is comparability. Id. If the district “sidesteps its statutory responsibility,” and the parents step into the district’s shoes by providing a comparable placement, then “public funding follows the student in the form of automatic reimbursement of parent expenses.” Id. Equitable considerations do not enter into the analysis. The hearing officer also dismissed the district’s argument based on Talisman’s unapproved status. She concluded that lack of state approval “is not an absolute bar to reimbursement . . . when, as here, that [unapproved] placement is both necessary and responsive to the Student’s demonstrated learning needs.” 17 MSER at 321 (citingFlorence County Four v. Carter, 510 U.S. 7 (1993), and Matthew J. v. Department of Education, 989 F. Supp. 380 (D. Mass. 1998)). She stated that lack of approval “cannot be used to effectively deny a [FAPE] to an eligible student,” and that therefore, when “the duty to implement ‘stay put’ and the duty to locate an ‘approved’ placement conflict, the latter must yield to the district’s fundamental obligation to ensure FAPE.” Id. Lastly, the hearing officer rejected the district’s argument that stay put was inapplicable because the district had not caused the Bromley Brook placement to become unavailable. The hearing officer held that stay put applies “whenever a student’s placement becomes unavailable,” regardless of the reason. 17 MSER at 322 (emphasis in original). We think that the hearing officer’s analysis was correct on all counts. This opinion offers decisive reminders that a district’s dilatory efforts to avoid a stay put obligation will be not be rewarded; that a district has an affirmative obligation to locate and offer a placement comparable to the last agreed-upon one; and that if the district fails to do so, it must be prepared to reimburse the parent who has provided a comparable placement.

A Garden Variety Stay Put Decision

In In Re: Taunton Public Schools and Solomon, BSEA #12-1212, 17 MSER 337(11/17/11),the district requested a determination of the stay put placement for a student who had attended a program at the South Coast Collaborative under an IEP that ran from October 2010 to October 2011. Near the end of the IEP period, by agreement of the parties, the student underwent an extended evaluation in a substantially separate classroom within the district. The Team convened in October 2011 and offered a substantially separate program in an elementary school within the district. The parents rejected the proposed placement and requested ABA services through the APEX Agency. The hearing officer ordered stay put in the substantially separate program at the South Coast Collaborative, finding no intervening agreement on placement and no basis for an emergency placement. Compared to the previous four decisions, this one was relatively easy to decide and atypical of the complex fact situations usually presented to the hearing officers. In all five decisions, the hearing officers strove to adhere to the letter of the law, recognizing the important procedural protection that stay put provides.

Three Decisions Involving Disputes About Assignment of Responsibility to Districts by DESE

In In Re: Walpole Public Schools and Heidi, BSEA #11-4328, 17 MSER 331 (11/01/11), Taunton and Westwood moved to dismiss Walpole’s appeal of DESE’s assignment of responsibility for a student with significant special education needs who was attending a residential program at the Kolburne School in New Marlborough, Massachusetts. The student’s co-guardians lived in Walpole and Westwood, Massachusetts. In October 2010, the Probate Court removed the co-guardians and appointed Daniel Smith of Taunton as sole guardian. On November 30, 2010, DESE assigned programmatic responsibility to Taunton. DESE then applied the move-in law (MGL c. 71B, §5), designating Walpole and Westwood as the former communities of residence (FCR) and Taunton as the new community of residence (NCR) effective October 25, 2010, the date of the change in guardian. Thus, fiscal responsibility for the student would remain with Walpole and Westwood through June 30, 2011 and shift to Taunton as of July 1, 2011. In January 2011, Walpole appealed DESE’s LEA assignment to the BSEA. Walpole contended that the hearing officer should not have applied the move-in law and that Taunton should have been assigned both programmatic and fiscal responsibility as of October 25, 2010, the date of the appointment of the new guardian. Walpole argued that the move-in-law does not apply where there has been no physical change of residence by parents or a guardian. Westwood then filed a motion to dismiss Walpole’s appeal, contending the move-in-law should apply and that DESE’s LEA assignment was correct. Westwood argued in the alternative that if the hearing officer decided that the move-in law did not apply, Westwood was in the same position as Walpole, i.e., if Walpole was not fiscally responsible from October 25, 2011 to June 30, 2011, then neither was Westwood. Walpole opposed Westwood’s motion to dismiss. Not surprisingly, Taunton filed a response in partial support and partial opposition to Westwood’s motion to dismiss, agreeing that the move-in law should apply and that, therefore, Westwood and Walpole should remain fiscally responsible until June 30, 2011. In partial opposition, however, Taunton also contended that DESE incorrectly determined that Taunton should be programmatically and fiscally responsible after June 30, 2011 based on an erroneous determination that Mr. Smith was appointed the student’s guardian in his individual capacity rather than in his capacity as Executive Director of the Advocacy Resource Center of Fall River ARC and the New Bedford ARC. After many additional legal filings, meetings and discussions, the hearing officer affirmed the assignment by DESE. Finding no case specifically on point, the hearing officer relied on decisions from an analogous dispute, Cohasset School Committee v.Massachusetts Bureau of Special Education Appeals, Plymouth Superior Court Civil Action No. 06-00087(2007), and Cohasset Public Schools, BSEA #05-3397, 12 MSER 8 (2005), to decide that a physical move from one community to another was not necessary to invoke the requirements of the move-in law and that DESE’s deeming of the student’s residence to be that of the gaurdian was appropriate. The hearing officer also found that in this particular case, such approach furthered the purpose of the move-in law, i.e., it avoided burdening a new community of residence with the unanticipated costs of a new student in a private program by holding the former community of residence, which had already budgeted for such costs, responsible for some period of time after the student moved. In Re: Lincoln Sudbury Public School, and Lincoln-Sudbury Regional School District, Department of Elementary and Secondary Education and Lexington Public Schools, BSEA #11-9766, 17 MSER 370 (08/29/11, decided on the written submissions of the parties), is another case in which the hearing officer affirmed the assignment of responsibility by DESE. Here, the student had been unilaterally placed since June 28, 2010 as a residential student at the Dr. Franklin Perkins School in Lancaster, Massachusetts. For the five years preceding his placement, he lived virtually full time in Lincoln with his mother, who had been awarded sole physical custody by the Probate Court. During that time, his father lived in Lexington. While at Dr. Franklin Perkins, the student spent equal time with each parent, in Lincoln and Lexington respectively, on weekends and overnight visits. At all relevant times prior to the student’s residential placement, he received his services from Lincoln-Sudbury. He had never received any services from Lexington. In affirming DESE’s assignment of responsibility to Lincoln, the hearing officer relied on George H. and Irene L. Walker v. Town of Franklin, 416 Mass. 291 (1993), to the effect that “the place where a student lives, where he dwells and which is the center of his social life” constitutes his residence for purposes of MGL c. 71B, §3, and c. 76, §5. 17 MSER at 372. The hearing officer found that, before entering Perkins, the student had spent most of his time with his mother in Lincoln, and that even after he entered Perkins and began spending equal time with both parents, his mother retained sole physical custody. The hearing officer also viewed as significant the fact that the student had attended public school in Lincoln until his unilateral placement, and that his last accepted IEP called for an in-district placement in Lincoln. The hearing officer rebuffed Lexington’s attempt to use 603 CMR 28.10(2)(a)(2) to hold Lexington jointly responsible for the out-of-district placement. As the hearing officer stated, since Lincoln’s proposed IEP did not call for an out-of-district placement, that regulation was inapplicable. In re: Westborough Public Schools, DESE, and Middleborough Public Schools, BSEA #12,0437, 12-0551, 11-7865, 17 MSER 316 (09/27/11), concerned a thirteen-year-old student in a private day program. His parents lived in different communities but the student lived almost exclusively with his mother in Westborough, pursuant to an order of the Probate Court designating the mother as the “primary parent” and stating that her residence would be considered the child’s home. The student stayed with his father in Middleborough on alternating weekends. The hearing officer affirmed the DESE’s assignment of responsibility to Westborough. First, the hearing officer found that the court order, though not determinative, carried “significant weight,” particularly where there was no showing that the actual living arrangements were incompatible with it. 17 MSER at 318. Second, the hearing officer found that the center of the student’s domestic life was in Westborough, where he spent 85% of his time overall. The hearing officer also pointed out that “100% of [the student’s] school-related preparation and transportation occurs in Westborough,” and concluded that it was permissible for the DESE to accord less weight to non-school-related time. Id. Lastly, the hearing officer rejected Westborough’s argument that the presence of a parent training component in the IEP, which required delivery of in-home services in Middleborough, made the student a resident of Middleborough. The hearing officer concluded that “the mere existence of an out-of-school training component in an IEP does not drive determination of student residence.” Id. All three of these decisions had a common theme: districts jockeying to try to avoid financial responsibility. In two of the cases, the hearing officers arrived at decisions which place responsibility on the district with which the student had the greatest connection, i.e., the district that was the “center of the student’s social life.” In the third, the hearing officer made creative use of the “move-in” statute to place responsibility in the short term on the districts that had budgeted for such responsibility already, and, in the longer term, on the new district which would at least have time to plan for the cost of the new student’s program. Thus, there were no big surprises or unexpected new financial obligations in any of the three cases.

Three Decisions Regarding Disputes Over Placement

In In Re: Andover Public Schools, BSEA #12-0430, 17 MSER 338 (12/02/11), the hearing officer ruled in favor of a parent who sought placement at the Landmark School for her fourteen-year-old daughter. The parent also sought compensatory services for services specified in the student’s IEP that were either not provided or provided poorly. The student, who had “solid average intelligence,” was diagnosed with a language-based learning disability that adversely affected her reading comprehension, written expression, and mathematics reasoning and concepts. At the time of the hearing, the student was in ninth grade. The student had enrolled in Andover on January 3, 2011 (midway through eighth grade) from the Newton Country Day School. The hearing officer found that, although the district was aware that the student had difficulties in various areas including math and reading, the eighth-grade IEP failed to meet the student’s needs in math, and the district failed fully to implement the reading services specified in the IEP. The IEP failed to address the student’s math needs appropriately because, the hearing officer found, Andover failed to meet its obligation to evaluate the student in a timely manner. Because the district lacked the information that an evaluation would have provided, its IEP lacked the services and modifications that the student required in math. With regard to reading, the district failed to provide the student with the number of reading sessions specified in her IEP due to a scheduling conflict with Spanish. The parent wanted her daughter to receive the number of reading sessions specified in the IEP and to take Spanish, but the district presented the parent with a Hobson’s choice, stating that the reading instruction could only be provided if the student dropped Spanish (thus forcing the parent to choose between Spanish and reading). The parent opted not to withdraw the student from Spanish, and requested that the reading services be provided after school, which the district refused for three months to do. The hearing officer found that the district’s failure to deliver the necessary, agreed-upon reading services violated the student’s right to FAPE. (We note in addition that denying the student access to Spanish would most likely have violated Section 504.) The district, citing C.G. v. Five Town Community School District, 513 F.3d 279 (2008), attempted to argue that the parent had withdrawn from the collaborative process when she communicated with Landmark in February 2011, indicating that she would like her daughter to attend Landmark for the 2011-2012 school year. The hearing officer rejected this contention, finding that, in light of “the voluminous communication between Parent and Andover during the period from January through June 2011, Andover’s allegation that Parent disengaged from the collaborative process is without merit.” 17 MSER at 352. On the evidence as reported, this conclusion was more than appropriate. Since the issuance of the Five Town decision, districts have been quick to allege lack of parental cooperation, often with very little basis. As the Andover decision illustrates, the mere fact that the parent and district may have a difference of opinion, or that the parent may start searching for alternatives, does not constitute unreasonable behavior within the meaning of Five Town. With regard to the student’s ninth grade (2011-2012 school year) program, Andover has proposed “block scheduling,” which was Andover High School’s standard practice for special education students. Under that schedule, which Andover stated was geared to helping special education students pass MCAS, the student in this case would have received only one semester of math instruction and one semester of English language arts instruction during her freshman year (both during the spring semester). An independent neuropsychological evaluator testified that, due to the student’s language-based needs and her difficulties with consolidating and retaining learned material, she required year-round instruction in both subjects. Because the “block scheduled” program left the student without instruction in math or English for months at a time, the neuropsychologist testified that it was inappropriate for the student. Andover was apparently unable to depart from the block scheduled model within the high school, and unwilling to consider out-of-district placement. The district put forth a few proposals to modify the block schedule, but the hearing officer found that these would have resulted in a more restrictive program (by depriving the student of electives) and would have forced the student to carry a heavier course load than any of her peers, disabled or non-disabled, thereby negating any possible benefits of the block system. The hearing officer further found that the student required language-based instruction, at a slow pace, across all areas on the curriculum. Such a program did not exist within Andover High School. The hearing officer concluded that: While block scheduling may be a widely accepted methodology, and while it may be implemented by well-intended, highly qualified teachers in Andover, it does not offer Student a FAPE at this point in her education, and any attempt to modify Andover’s block schedule would result in creating a highly restrictive program, in contravention of the requirement of the law. Parent argued that Andover’s block schedule was offered because that is what is available and does not appropriately respond to Student’s needs, denying her a FAPE. As such, she argues that she is justified in seeking out-of-district placement for Student. Taking into account Student’s current needs and in light of the implications of attempting to address Student’s needs within the block schedule model as discussed above, as well as the fact that Andover does not offer a language-based program outside block schedule in high school, Parent’s request is justified. 17 MSER at 355. The hearing officer therefore ordered the district to place the student at Landmark. We applaud this result. Too often, districts try to shoehorn special education students into “what is available,” rather than designing the student’s program to meet his or her unique needs. Here, the district’s unwillingness to “think outside the box” (or, one might say, “outside the block”) resulted, as it should, in an order for out-of-district placement. A phrase that the hearing officer quoted from one of the parent’s letters to the district - “’schedules should not prevail over services needed,’” 17 MSER at 342 - underscores the lesson to be drawn from this case. In Re: Boston Public Schools, BSEA #12-1298, 17 MSER 356 (12/13/11), concerned a thirteen-year-old girl with a complex profile, including diagnoses of major depressive disorder, anxiety disorder, school phobia, chronic health problems, and learning issues. The parent filed a hearing request seeking an order for an unspecified private therapeutic day placement. At the time of the hearing, the student had been at home without a placement for approximately eight months. Boston was proposing a substantially separate program, described as therapeutic, at its McKinley Middle School. The student had not attended that program, as the parent and the student’s therapist, after visiting it, had concluded that the program would not be appropriate for the student, “primarily because of the presence of acting-out peers within the school building.” 17 MSER at 359. The hearing officer found that the district’s proposed program would not meet the student’s needs. It was undisputed that the student “is an exceptionally fragile, vulnerable child”; that she had “absolutely no history of oppositional, disruptive, defiant, or acting-out behavior”; and that she “finds such behavior in other children to be threatening.” 17 MSER at 360. As the hearing officer described it, “acting out” on the part of other children causes this student to “‘act[] in,’ becoming highly anxious, physically ill, and unable to function in a school setting.” Id. at 361. There was unrefuted evidence that “the behavior of peers, whether inside or outside of the classroom, would be unavoidable and would likely prevent Student from even attending [the McKinley] school on a regular basis, let alone making effective progress.” Id. Although the hearing officer found that the McKinley program was well-staffed and well-designed, she concluded that the Student, in her “current state of vulnerability,” would be unable to benefit from what the program might offer. Id. Thus, she concluded that the proposed program was inappropriate. She ordered Boston to send referral packets to therapeutic programs that would provide “a supportive, nurturing, calm environment,” with peers who display “little or no disruptive, aggressive, or acting-out behavior.” Id. This was a “no brainer,” as there was a total mismatch between the needs of the fragile, vulnerable student and the McKinley School program, with its boisterous, acting-out peers. Why Boston did not offer a more appropriate and defensible program, even if it had to look out-of-district, is baffling. It is troubling that, even though the parent ultimately prevailed, Boston’s insistence on the McKinley program compelled the parent (who was presumably unable to make a unilateral placement) to pursue the hearing process to its conclusion. Boston thereby deprived the student of months’ worth of the therapeutic program that she should have had, for which no compensation was ordered. In Re: Taunton Public Schools and Solomon, BSEA #12-1212, 17 MSER 362 (12/14/11), involved an eight-year-old student with diagnosed disabilities of intellectual impairment, communication impairment, and autism spectrum disorder. Overall, the student functioned at a 12- to 24-month cognitive communication level. He was not verbal but had some emerging communication skills using gestures, eye gaze and pulling. The district sought an order for placement in a substantially separate classroom operated by the South Coast Collaborative. The pro se parents did not produce any evidence at the hearing. In fact, only the father appeared and he left during the direct examination of the district’s first witness. In the parents’ absence, the hearing officer viewed the school’s proffered evidence with “heightened scrutiny.” 17 MSER at 363. Ultimately, the hearing officer found the IEP proposed by the district to be appropriate. She concluded that the IEP met all of the evaluators’ recommendations. She credited the testimony of the district’s witnesses, finding them to be highly professional, thorough, and thoughtful. Although she was not required to consider the parents’ claims due to the parents’ abandonment of the hearing process, the hearing officer nonetheless went on to do so. She found no evidentiary support for any of those claims. This was a sad case, where the parents appear to have given up on both the district and the appeal process in trying to secure appropriate services for their son. Before he left the hearing, the father indicated his intent to home-school his son. It is unfortunate when feelings between parents and district run so high that the parents decide to withdraw their child from special education altogether, possibly to the detriment of the child. Districts and parents should try their hardest to prevent this type of breakdown in their relationship.

Conclusion

This review illustrates the practical and common sense approach of the hearing officers in their efforts, when presented with complex fact situations, to weigh the evidence and reach conclusions that are legally correct and in the best interests of the student. These cases not only provide helpful guidance to participants in BSEA proceedings, but afford valuable insight into the relationship between parents and school districts, and the BSEA’s role in defining the nature and limits of that relationship.

Commentary on Massachusetts Special Education Decisions: 2nd Quarter, 2011, by Daniel T.S. Heffernan

April 03, 2011

Introduction

This quarter’s fourteen decisions provide insight into a wide variety of determinations made by the BSEA. There is an instructive comparison between two decisions by the same hearing officer involving unilateral placement at the Landmark School which yielded different results. There are also decisions involving a METCO student, an exception to the statute of limitations, a parent’s “acceptance” of an IEP not equaling “consent” to that IEP, as well as a tort action on behalf of a student sexually assaulted at school by a school employee. Significantly, this quarter’s decisions reflect a recent trend in litigation before the BSEA: bringing motions that seek to dispose of all or part of the action short of a full hearing. Of this quarter’s fourteen decisions, seven were rulings on motions to dismiss or for summary judgment and a “partial decision.”

Dispositive Motions

In Massachusetts Superior Court and Federal District Court, motions to dismiss and for summary judgment have long been standard fare. Tracking orders which establish deadlines for lawsuits in those forums always provide dates for the filings of motions to dismiss and summary judgment. In BSEA actions, while the procedure for filing such motions has always existed, it is only recently that an increasing number of BSEA litigants, parents and school districts alike, have availed themselves of this option. Both the BSEA Hearing Rules (Rule 17B) and Massachusetts Executive Office of Administration and Finance Adjudicatory Rules of Practice and Procedure (801 CMR 1.01(7)(g)3)) empower a hearing officer to allow a motion to dismiss if the moving party fails to state a claim upon which relief can be granted. Since the rule is analogous to Rule 12(b)(6) of both the Massachusetts and Federal Rules of Civil Procedure, BSEA hearing officers have generally used the same standards as those courts in deciding motions to dismiss for failure to state a claim. A motion to dismiss should be granted only if the party filing the appeal can prove no set of facts in support of his or her claim that would entitle him or her to relief that the BSEA has authority to order. A hearing officer may dismiss a case if the hearing officer cannot grant relief under the federal or state special education statutes or relevant portions of Section 504. In acting on a motion to dismiss, courts typically consider only the complaint and answer. If other materials, such as affidavits, are submitted, the motion is often converted to a motion for summary judgment. The hearing officer may consider other information without formally converting the motion to one for summary judgment if there is no prejudice to either party. The standard for deciding motions to dismiss and summary judgment vary significantly. For motions to dismiss, the hearing officer must accept as true all well pleaded factual averments and draw all reasonable inferences in favor of the party opposing dismissal. In summary judgment motions, a court will determine whether there is “any genuine dispute as to any material fact” and if there is not, decide whether or not to enter judgment on all of part of the lawsuit. Practitioners and litigants should consider motions to dismiss and for summary judgment an important arrow in their litigation quiver. However, like any weapon, it is only effective if used properly and in the appropriate situation. Such motions typically involve fewer resources and time than a full evidentiary hearing. They may dispose of an entire claim. In situations where they dispose of only a portion of the claim, it may lead to settlement of the remaining claims or at least a more streamlined hearing. However, futile motions only serve to delay the ultimate resolution of the claim and waste the resources of the litigants and the BSEA.

Failure to provide translated notice of procedural rights and IEP negates the district’s defenses

In Boston Public Schools, BSEA #11-4676, 17 MSER 76 (2011), the hearing officer amended his previous ruling allowing Boston’s motion to dismiss. The student involved was 20 years old and attended East Boston High School. He was diagnosed with significant cognitive delays and was on an IEP from Boston since 1993. Although he was bilingual, his parents were not. The parents sought prospective and compensatory relief for the student and claims relating to transition services. Previously, the hearing officer had dismissed the parents’ claims for their failure to bring them within the applicable IDEA statute of limitations, which provides, at 20 USC § 1415(f)(3), that “a parent or agency shall request an impartial due process hearing within two years of the date the parent or agency knew or should have known about the alleged action that forms the basis of the complaint. . .” In the instant action, the parents had not brought the action within two years and therefore the action was dismissed. The parents sought reconsideration pursuant to the exception to the statute of limitation bar: “The timeline described in subparagraph (C) shall not apply to a parent if the parent was prevented from requesting the hearing due to. . .(i) specific misrepresentations by the local educational agency that it had resolved the problem forming the basis of the complaint; or (ii) the local educational agency’s withholding of information from the parent that was required under this subchapter to be provided to the parent.” To meet this exception, parents must demonstrate that requisite information was not provided and second, that the parent was thereby prevented from timely requesting the due process hearing. Boston failed to provide, as required, translated notices of procedural safeguards for 2005-2006, 2006-2007, 2007-2008, and 2008-2009 school years. This hearing officer held that failure to provide this notice implicates both requirements of the exception to the statute of limitations, for how can a parent be required to request a hearing within a certain time frame when not told of that deadline? Boston also sought to dismiss claims relating to the appropriateness of earlier IEPs because they had been accepted by the parents. The general and well settled rule is that acceptance of an IEP precludes a hearing officer from thereafter considering its appropriateness. Several BSEA decisions have established this: In re: Yale and Upper Cape Cod Regional Technical School and Sandwich PublicSchools, BSEA #06-0501 & 06-0808, 11 MSER 200 (2005), In Re: Quabbin, 11 MSER 146 (2005); as well as the Federal District Court; Doe ex rel. Doe v. Hampden-Wilbraham Regional School Dist., 715 F.Supp.2d 185, 194-195 (D.Mass 2010). However, here again, Boston’s failure to comply with the requirements regarding non-English speaking families led to an exception to this rule. The IEPs for the student when he was under 18 years old were not written in the parents’ native language. While the term “accept” is utilized on Massachusetts IEP forms and generally referred to in BSEA decisions regarding IEP responses and found in Massachusetts special education regulations, the regulations do not define “accept.” However, Massachusetts regulations refer to “consent” and the federal IDEA regulations use consent instead of accept. The federal regulations define consent, at 34 CFR §300.9(a), in part to mean, “The parent has been fully informed of all information relevant to the activity for which consent is sought, in his or her native language, or other mode of communication.” Because of Boston’s failures to provide the IEP in the parents’ native language, and drawing all inferences in the parents’ favor in ruling on Boston’s motion to dismiss, the hearing officer found that Boston’s failures precluded parents from providing legally effective acceptance of the IEPs and therefore denied Boston’s motion to dismiss on this ground. As to the 2008-2009 IEP, when the student was 18, neither the parents nor the student attended the IEP meeting. Boston failed to invite the student to the team meeting (34 CFR §300.9(a)) and failed to comply with their affirmative duty to schedule the meeting at a mutually agreed on time and place (34 CFR§300(9)(a); 603 CMR 28.02(4)), or document that before holding a meeting without the parents it had made phone calls, visits, etc. in an attempt to schedule the meeting at a mutually agreeable time and place (34 CFR§300.321(b)(1)). Because of these failures, and again under the motion to dismiss standard, the hearing officer found that Boston’s failures precluded the student from providing legally-effective acceptance of the IEP and therefore denied the motion to dismiss. In Bridgewater-Raynham Public Schools, BSEA #11-6444, 17 MSER 91 (2011), the hearing officer ruled on parents’ motion to dismiss Bridgewater-Raynham’s hearing request seeking substituted consent for an evaluation of a sixth grader. Parents had previously filed a hearing request that was withdrawn after the parties reached agreement in their resolution session. At that resolution session, they agreed to have the student undergo multiple evaluations by Bridgewater-Raynham and READS Collaborative. The Team reconvened after these evaluations and minor changes, requested by parents, were made to the IEP, but not signed by the parents. Subsequently, the parents, through their advocate, wrote to Bridgewater-Raynham to request an independent evaluation by a psychologist. Three days later, the director of special education responded requesting that the parents identify what evaluation they disagreed with and why, and requested information regarding the proposed independent evaluation as well as the parents’ financial information. The parents filed a complaint with DESE’s Program Quality Assurance (“PQA”). When PQA learned the parents had scheduled a mediation, PQA set aside their complaint. They reopened it when the mediation was cancelled. Bridgewater-Raynham requested parents’ consent to evaluations in speech and language and psycho-educational areas. When parents refused to consent, Bridgewater-Raynham filed its hearing request. Parents first argued that the BSEA should not hear the matter because the PQA was investigating these issues. The hearing officer dismissed this notion, because the BSEA essentially preempts the jurisdiction of the PQA. Support for this proposition is located even within the DESE PQA Services, Compliance and Monitoring, Problem Resolution System Information Guide which states that federal law prohibits the DESE from investigating a complaint where the parties are engaged in a BSEA proceeding relating to the same issues. While the parents maintained that Bridgewater-Raynham instituted the BSEA proceedings simply to derail or deny the parents’ right to a PQA investigation, at the motion to dismiss stage there was no evidence to draw such a conclusion. The hearing officer characterized Bridgewater-Raynham’s attempt to conduct further evaluations seven months after their previous comprehensive evaluations as an attempt to get a “second bite at the apple.” Therefore, Bridgewater-Raynham’s request for this was dismissed. The hearing officer then examined parents’ request for an independent evaluation and Bridgewater-Raynham’s response. Under the hearing officer’s strict reading of Massachusetts regulations, she held that 603 CMR 28.04(5)(d) accords the district only two options in responding to such requests: pay for the evaluation or request a hearing within five days. While the parents’ letter requesting the independent evaluation was deficient in certain respects, the district’s response was insufficient to toll the five day deadline, and since Bridgewater-Raynham failed to file a hearing request within five days, it was obligated to fund the independent evaluation. The hearing officer not only dismissed the hearing request, thereby preventing the district from reevaluating without the parents’ consent, but also affirmatively ordered Bridgewater-Raynham to fund the independent evaluation after parents provide more information about that evaluation. In Springfield Public Schools, BSEA #11-4290, 17 MSER 81 (2011), an Educational Surrogate Parent (“ESP”) sought an order determining that the ESP’s retention of an attorney to file and prosecute a hearing request on behalf of the ESP and the student is a reasonable expense related to the ESP’s responsibilities as a surrogate parent. It was also argued that the school district should reimburse the ESP or in the alternative, have the DESE, Department of Children and Families or Springfield provide a funding mechanism for that purpose. The student was a 16 year old and in the permanent custody of the DCF. It is well settled that the BSEA lacks authority to award attorney fees even to prevailing parties—that authority rests with the appropriate state or federal court. There is also nothing in state or federal special education statutes that grants parents the right to publicly funded counsel. Therefore, since the ESP had failed to “state a claim upon which relief may be granted,” the motion to dismiss was allowed. (That said, while the hearing officer may have been correct in the ruling, this matter reflects a serious gap in the effective rights and protections that a person for whom an ESP must be appointed should have. Money should be allocated within a responsible agency—be it DCF or DESE—and legislative attention should be paid to the injustice of a situation that effectively denies a student effective access to due process.) The school district in CBDE Public Schools, BSEA #10-6854, 17 MSER 107 (2011) asked the hearing officer to dismiss a claim arising from the sexual assault of a student because the BSEA lacks authority to grant the requested relief of monetary damages. The student’s hearing request alleged that a CDBE employee raped the student, who was 14 years old at the time and not yet determined eligible for special education or Section 504. As a result of the rape and continued contact with the alleged perpetrator for months, the student was severely traumatized. This was manifest in escalating behaviors and emotional outbursts that resulted in her hospitalization on two occasions. The parents allegedly “begged for help” from the school for the student. The hearing request claimed that CBDE should have identified the student as having a disability and needing special education or related services pursuant to its “child find” responsibilities under federal special education law. Had it done so, the hearing request alleged, the rape would have been discovered earlier and the student would not have suffered such trauma or needed hospitalizations. The hearing request sought three types of relief: CBDE’s funding of a therapeutic placement; reimbursement for parents’ funding of her placement; and, lastly, monetary damages for negligence, loss of consortium, the rape, emotional distress and other torts. The first two claims were dismissed by the hearing officer previously after the parents signed the IEP for prospective placement and no placement costs had been incurred by the parents. Concerning the claim for monetary damages, CBDE sought dismissal because the BSEA could not award that requested relief. This same hearing officer had, in Mashpee Public Schools, 14 MSER 143 (2008) and 14 MSER 156 (2008), provided an extensive analysis of the BSEA’s role in the litigation of such damages actions. “Exhaustion” is the requirement that disputes arising out of the provisions of special education services must first be brought to the BSEA before proceeding to federal or state court. In some of those decisions, courts had dismissed actions that were not first fully litigated at the BSEA, even if the claim was solely for monetary damages and did not involve claims brought under the IDEA. In Mashpee, the primary focus of the hearing officer’s decisions related to the scope of the hearings before him and the parameters of his decision. In the instant case, the hearing officer again reviewed the leading court cases regarding exhaustion and found that the BSEA is required to conduct fact finding even when it cannot award the damages the parents seek. The hearing officer noted that if he ruled otherwise, it was his belief that the dispute would likely be returned to the BSEA by a state or federal court for failure to exhaust administrative remedies. The hearing officer in New Bedford Public Schools and Cody, BSEA #09-3103, 17 MSER 131 (2011), ruled on numerous motions to dismiss, resulting in the dismissal of all the claims before him. The student, who was in the custody of DCF as a result of a Child in Need of Services (“CHINS”) petition, had been placed at St. Vincent’s day and then residential program. The parent filed the hearing request against New Bedford and DCF in November 2008. The parties agreed to submit an agreed statement of facts and motions for summary judgment solely on the issue of the student’s stay put rights. In February 2009, the hearing officer denied the parent’s motion for summary judgment but allowed New Bedford’s, determining that the stay put rights did not arise from the student’s placement at St. Vincent’s by DCF for custodial, non-educational purposes. The parent appealed to superior court. Then the parent agreed to place student “on a temporary basis” at the district’s Westside School. In addition, the parent regained custody from the DCF and consented to the dismissal of the CHINS. The BSEA, at the request of all parties, placed the proceeding “off-calendar.” In January 2010 New Bedford proposed an IEP for January 15, 2010 to January 15, 2011 placing the student at Trinity Academy (formerly Westside School). Parent consented, again maintaining that this was a “trial period placement.” New Bedford moved to dismiss the parent’s BSEA appeal citing BSEA Rule 18(D) which provides: “A case that has not been rescheduled, withdrawn, or requested to be scheduled by either party for a period of one year from the original request for hearing shall be dismissed with prejudice.” New Bedford also noted that while the BSEA appeal lay dormant, the parent had accepted two IEPs. In March 2011, the superior court allowed New Bedford’s motion for summary judgment and DCF’s motion to dismiss and dismissed the parent’s court complaint on the grounds that the BSEA’s February 2009 BSEA rulings were correct and there was no longer any actual controversy regarding the placement issue from 2009. The hearing officer followed suit and allowed New Bedford’s and DCF’s motions to dismiss. The hearing request addressed the St. Vincent’s placement and since the student had left there long ago and the hearing request was never amended to address the student’s new placement, the hearing request was moot. In addition, the parent had accepted the IEPs and the hearing officer would not re-open accepted IEPs, especially since they had already expired. The parent’s hearing request was therefore dismissed with prejudice.

The motion to dismiss standard applied to “never darken my door again” settlement agreement

The BSEA’s allowance of motions for summary judgment and dismissal disposed of a parent’s hearing request in Ipswich Public Schools, BSEA #11-7213, 17 MSER 135 (2011). The parties had entered into a settlement agreement that contained a “never darken my door again” clause. Such clauses typically involve an agreement for funding from the school district in exchange for an agreement that beyond a certain date the school district would not be obligated to provide or fund special education services. The BSEA has previously upheld the validity of such clauses. See In Re: Peabody Public Schools, 15 MSER 154 (2009). In exchange for funding an outside day placement, the parent waived the right of the student to receive services of any kind after June 2012 regardless of whether or not the student received a high school diploma. The exception to this never darken my door clause was if a “catastrophic change in circumstances” arose. This term was defined as “the occurrence of an event which causes serious and prolonged physical or emotional injury resulting in a material and substantial change in [student’s] functioning. Further clarifying, an exacerbation of [student’s] emotional disabilities (including but not limited to, PTSD, OCD, depression, anxiety, and/or suicidal ideation) shall not constitute ‘Catastrophic Circumstances,’ even if such exacerbation results in prolonged hospitalization or need for psychiatric treatment.” The dispute before the hearing officer was the applicability of the exception to, and the validity of, the never darken my door again clause. The student was hospitalized at Cambridge Hospital for nine days and then referred to the Acute Residential Treatment Unit at McLean Hospital. The parent maintained that the agreement was void because the student now required a residential placement. The parent did not assert that there was a catastrophic change in circumstances and presented no expert support or other support to dispute the District’s contention that the hospitalizations were simply an exacerbation of student’s previous condition. The parent also argued that as a matter of public policy agreements containing such never darken my door agreements should be voided since, if not, they would be allow to trump federal law requiring FAPE. The hearing officer held that it has been well established that such clauses are enforceable and not against public policy. He also noted that the parent, who appeared pro se, had been a licensed attorney for twenty years and should have understood what she waived in exchange for the funding. Parents and their attorneys should consider the downside to agreeing to such clauses. However, virtually every agreement calls for some compromise or waiver of claims and the decision to bargain away rights for educational services beyond a set date may be, on balance, a wise one. Parents and their representatives should assume that they are enforceable. They must consider carefully the potential contingencies and “what ifs” that appear at the time of the agreement to not be possible or very probable. They should also attempt to seek an escape clause that will allow the student to continue to receive services if a material and unanticipated change occurs. In point of fact, the particular language of this agreement seems to us to be over-reaching insofar as it contemplates some extremely serious and life-altering consequences in a student’s change of circumstances that, just because they can be traced to the original disability would preclude continuing the district’s responsibility for the student past the end date of the agreement. We would urge districts to back off from the draconian implications of such language and parent advocates to fight against the insertion of such provisions. The parents in Westborough Public Schools and Hal, BSEA# 10-7493, 17 MSER 75 (2011), pursued another more frequently employed pre-hearing request: seeking to join a state agency— the Department of Developmental Services (“DDS”). The student, a 13 year old with significant delays in all areas of functioning, was receiving DDS services in his home. The parents filed the hearing request seeking a residential placement and a determination that either Westborough or DDS must fund the residential portion of his program. Toward that end, the parents sought to join DDS to the proceeding. Westborough did not oppose the motion. The statute providing for the jurisdiction of the BSEA over state agencies such as DDS—MGL c.71B, §3, as well as the regulation addressing it, 603 CMR 28.08(3)—and BSEA Hearing Rule 1(F), 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 to 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. The hearing officer examined DDS’s rules and regulations and determined that the student was not generally eligible for DDS residential services because of his age. The relevant DDS regulation, 115 CMR 6.03, provides that a person with mental retardation over 18 years old is sometimes entitled to residential services subject to funding and availability. Therefore, since the student in question was 13, joining DDS would serve no productive purpose and the motion was denied.

An expedited “partial decision” on restraint issue

Although not a ruling on a dispositive motion, the hearing officer, at the request of both parties issued a “partial decision” about a discrete issue shortly after a five day hearing in Norwood Public Schools, BSEA #11-5444, 17 MSER 147 (2011). The parties had requested that the hearing officer rule on Norwood’s use of a “hip stabilizing belt” while feeding the student as soon as possible. The hearing officer obliged, issuing this partial decision within the week after the last day of hearing and within four days of written argument on the issue. The student had Pervasive Developmental Disorder (“PDD”) along with many medical concerns related to feeding. Norwood sought to use the hip stabilizing belt for the limited purpose of assisting with feeding and purportedly making it safer. Parents argued that the belt was not necessary and constituted an unauthorized restraint. The hearing officer found the decision to use the hip stabilizing belt to be comparable to a school district’s selection of a particular methodology of instruction and as such, entitled to deference from a BSEA hearing officer. The hearing officer further credited the district’s expert witnesses in this regard based on their longer observation of the student and was persuaded that the use of the hip stabilizing belt substantially improved his food intake and decreased the risk of choking. However, the hearing officer also deemed the hip stabilizing belt to be a “restraint” pursuant to 603 CMR 46.00 as it clearly limited “the physical freedom of an individual student by mechanical means.” As such, it could only be used if Norwood first complied with the requirements of the restraint regulations. Those regulations prohibit the use of mechanical restraints unless explicitly authorized by a physician and approved in writing by the parent or guardian. Since the parent refused to authorize the use of the hip stabilizing belt, Norwood could not employ it on the student. The hearing officer then suggested a possible way for Norwood to use the belt. 603 CMR 46.02(5)(a) provides: “A protective or stabilizing device ordered by a physician shall not be considered mechanical restraint.” Therefore, if Norwood obtained such a physician’s order, it could use the hip stabilizing belt. Until such time, they were precluded from using it.

What are the responsibilities of the host district for a METCO student?

Lincoln Public Schools and Boston Public Schools, BSEA #11-4678, 17 MSER 95 (2011) involved a first grade student from Boston who had been attending school in Lincoln since September 2009 with the METCO program. Lincoln proposed an IEP calling for a substantially-separate, language based program for the student. Significantly, Lincoln did not have such a program or sufficient and appropriate peers to develop one. Therefore, Lincoln proposed placement back in Boston Public Schools and Boston stated that they were ready to place the student immediately into such a program. Parents opposed this placement, arguing that Lincoln should offer more services and support to educate the student in Lincoln’s mainstream. Lincoln presented detailed testimony about the student’s struggles in the inclusion classroom and how increased services from Lincoln still did not provide the student with enough support. They testified that while the student had made individual gains toward IEP goals and objectives, she was still unable to fully participate in first grade curriculum and she was a year below grade level in math and displayed numerous reading difficulties. Lincoln also testified that in class the student was often off task, made inappropriate noises, had emotional outbursts and difficulty initiating or sustaining independent play with peers. However, the most recent report card showed that despite her weaknesses, the student, with a modified curriculum and supports, was developing and making progress. Lincoln explored the CASE Collaborative but found that it did not have an appropriate peer group for the student, would not have allowed integration into mainstream classes and would have required an hour commute to the program. Members of the Advocating Success for Kids (“ASK”) program at Boston Children’s Hospital evaluated and observed the student and testified on behalf of the parents. The hearing officer did not detail their testimony nearly as much as that of the Lincoln witnesses. They testified that the current Lincoln program could be made appropriate with additional modifications and increases in services. They also testified that student seemed happy in the Lincoln program. The hearing officer found that maintaining the student in the Lincoln program with additional services would require an increase in one to one services, making the student “more adult dependent” resulting in greater alienation between her and her peers and resulting in her attending a more restrictive placement than the sub-separate program proposed. Therefore the hearing officer ordered that the placement be in Boston’s sub-separate language based program. While the decision was issued on April 29, 2011, the hearing officer ordered that the change not be made immediately because the student was happy in the Lincoln program and such a transition late in the school year would be difficult for the student.

The push to create a comparable program closer to home unsuccessful in light of thestrong out of district program

The dispute in Northampton Public Schools, BSEA #11-4229, 17 MSER 139 (2011) centered on the parents’ desire to have their son educated closer to home. The student was 10 years old at the time of the hearing and was diagnosed with dystonic quadriplegic cerebral palsy in the severe range, cortical visual impairment, and apraxia of speech. He was non-ambulatory and used a wheelchair for transportation, communicated through vocalizations, an ECO augmentative communication device, a communication notebook, Mayer-Johnson picture symbols and a Little Step-by- Step switch. Northampton granted the parents’ request for a referral to the Perkins School for the Blind in Watertown, Massachusetts. He was accepted and began attending there in September 2010. Although the student was accepted as a residential student, the parents initially transported him from Northampton to Perkins each day. Northampton had understood that Student would attend Perkins as a residential student because of its distance of approximately 100 miles from student’s home. Perkins staff also assumed that he would be a residential student due to the distance that he lived form Perkins. Northampton did not become aware that student was being driven to and from Perkins every day until the end of September. Student attended most days in September, but was sometimes late. Student’s attendance record shows that he was present for at least some portion of 48 of 70 possible days during his period of attendance at Perkins. Those numbers did not include days on which he was tardy and missed a portion of his programming. The student spent his first night at Perkins on September 30, 2010 and spent approximately 17 of a possible 53 nights at Perkins during the course of his attendance. During November, the student was absent 11 of a possible 19 days. In December he was absent eight of a possible 13 days. Perkins staff testified that his stays in the residence were largely successful. The hearing officer noted with obvious admiration that Perkins offers a superb, well-integrated program. Perkins staff only wished they had more time to work with him. The IEP developed for the placement was extremely comprehensive both in terms of goals and objectives, and services. In January 2011, the parents rejected the substantially separate setting and delivery of all services in Grid C. During the 2009 and 2010 summers, the student attended Augmentative and Alternative Communication (“AAC”) summer camps which Northampton funded. The focus of the camp was on communication and training students’ paraprofessionals. At the AAC summer camp, the student was able to tolerate the noisy environment and the use of the ECO longer and more efficiently than he previously had. He was also joining into conversations with peers using the ECO. His use of the ECO was more efficient than it previously had been. Hillary Jellison was a speech and language pathologist who focused primarily on people who use augmentative and alternative communication (“AAC”) devices. Ms. Jellison testified that the student needs a staff person with experience in AAC. Ms. Jellison had a contract with the Holyoke Public Schools to provide consultation regarding AAC. She was familiar with a “program” at the E.N. White School in Holyoke through discussions with her business partner, Nerrissa Hall, as well as the special education director in Holyoke. There were two students in that program, both younger than the student and one with a similar profile. The parents sought to have student attend a program that Ms. Jellison and Ms. Hall proposed creating: an AAC classroom in September 2011. The proposed program, which did not yet exist, would be designed to provide students with access to a regular education classroom, occupational therapy, physical therapy, speech language therapy, and an AAC resource room. Ms. Jellison or Ms. Hall would run an “AAC classroom” where students would spend one to two hours per day. The student would be in an inclusion classroom for the rest of the day. There would be a paraprofessional in class and there could be two other students in the classroom. The student’s ECO would be mounted and available to him at all times. The parents sought this program because it would allow the student to live with his family and community. This case stands as yet another reminder that when a parent seeks a placement other than that proposed by the school district, the focus is primarily on the adequacy of the public school program: in this case, Perkins. The appropriateness of the alternative program will not even be considered unless the district’s program is found to be inappropriate for the student. Here, the hearing officer praised the Perkins program in general as well as the specific IEP for the student. The testimony of the highly qualified parents’ expert criticizing the Perkins program was discounted because she was not familiar with the Perkins program and had not observed the student there or even spoken with his service providers at Perkins. The hearing officer ruled that the Perkins IEP was reasonably calculated to provide the student with FAPE in the least restrictive environment. Although not required, the hearing officer took the opportunity to opine about that the proposed program was not appropriate for the student for several reasons, including the lack of specifics about the program as well as no assurance that the program would ever come to be. However, the hearing officer encouraged the parties to explore the possibility of developing this program in Holyoke.

Stay put for a transferring student

The student in Leominster Public Schools, BSEA #11-5122, 17 MSER 83 (2011) was a nine-year-old boy with autism and various medical issues, including eczema, asthma and allergies. Prior to moving to Leominster, the student lived in Haverhill. Under Haverhill’s 2009-2010 IEP, not accepted by the parents until April 15, 2010, the student had a 1:1 aide and various services, including extended school day and year. He was placed at the Therapeutic Educational and Assessment Center of Haverhill (“TEACH”). The student was enrolled in Leominster on May 3, 2010. The student began attending the PDD program at the FLLAC Collaborative. After one month in that program, Leominster proposed a new IEP which was rejected by the parents. This IEP called for placement at FLLAC as well as extended year services. The parties had a facilitated team meeting on September 30, 2010 and Leominster proposed a new IEP. The IEP called for extensive services and extended school year, but not extended day as had been provided for in the Haverhill IEP. The parents rejected this IEP, maintaining that the student required extended day services, a longer summer program and a placement in a separate day program. This last point appeared to be a matter of semantics in the label, since FLLAC was a separate program but housed in the Leominster’s Houghton Elementary School, and therefore not considered a “separate day program.” Leominster filed the hearing request seeking a determination that its IEP provides FAPE and the parents have no stay put rights from the previous Haverhill IEP. The parents removed the student from school for several weeks beginning in December 2010, and did not return the student on a consistent basis until the second week of February, 2011. Prior to his removal, district staff testified that the student’s maladaptive behaviors had decreased. They spiked up when he returned to school in February. The staff also testified extensively and with great specificity that the student was making effective progress in the FLLAC program. Certain set backs or slow progress were attributed to his extensive absences from school. There was also a dearth of evidence that the proposed IEP would not provide FAPE. The student’s mother testified that she was content with the goals and accommodations. In addition, no expert testified that the student required a longer summer program to prevent substantial regression or that he required an extended school day. Concerning the stay put issue, Leominster, as the receiving school district, was obligated to provide services that were “comparable” to the IEP of the former district. 20 USC 1414(d)(2)(C) (i); 34 CFR 300.323(e); 603 CMR 28.03(1)(c)(1). The hearing officer found, with one exception, that the Leominster IEP provided comparable services. The only relevant difference was that Leominster’s IEP provided fewer weeks of extended year services. As a result, the hearing officer did award the student three weeks of compensatory services.

Three Landmark School unilateral placement cases provide insight into what makes a successful challenge to a school district program

During this quarter three decisions were issued concerning unilateral placements of elementary or middle school students at the Landmark School. Two of the decisions were by the same hearing officer. Each decision yielded different results. While every case is unique, a comparison of these decisions, issued within a short time of each other, offers valuable insight into the viability of claims for funding for programs such as Landmark. The principal dispute in Hingham Public Schools, BSEA #11-3762, 17 MSER 111 (2011) was whether Hingham’s inclusion fifth grade classroom was appropriate for the student. While the parents and their experts endorsed this inclusion and pullout model for years, the parents unilaterally placed him at the Landmark School beginning in fifth grade. The student had a variety of disabilities, including dyslexia, disorder of written expression and ADHD. The parents for the first time rejected an IEP in the spring of the student’s third grade year (March 2009). To resolve the dispute, the parties agreed to share the cost of an independent evaluation by Lorna Kaufman, Ph.D. Dr. Kaufman found that the student was reading below grade level and required increased services. Hingham adopted many of Dr. Kaufman’s recommendations. In the first few months of the fourth grade year the team met twice to review the results of a private speech language evaluation and an observation by Dr. Kaufman. Hingham proposed and revised a new IEP with additional services which was fully accepted by parents in November 2009. This and the fact that Hingham had taken into account these independent assessments led the hearing officer to deny parents’ claims for compensatory relief relative to services provided before the Landmark placement. Student’s mother testified that although the fourth grade year began well, he began deteriorating emotionally, referring to himself as the “dumbest” kid in the class. The mother was also shocked to learn that the student was not included in social studies or science classes, and that his work output was significantly less than other students and often “scribed” by school personnel. At the end of the fourth grade year, parents pressed for student’s placement in a substantially separate, language based program. It was undisputed that Hingham had no such program. Parents unilaterally placed the student at Landmark in September 2010, the student’s fifth grade year. Hingham proposed an inclusion program with significant supports and pull out services. The lines of dispute were clearly delineated in the case—whether or not the student was making effective progress and would continue to do so in Hingham’s inclusion model. As is often the case, the matter boiled down to a battle of the experts. What is most significant about the hearing officer’s comparison of the experts’ opinions, is his willingness to delve beneath broad assessments of how many grade levels the student was behind in reading or had gained, etc. Instead, this hearing officer examined more focused assessments of certain deficits and weighed the utility of various test instruments. For example, one of the parents’ experts, Kira Armstrong, Ph.D. argued that the student had not made sufficient progress in decoding skills. This was manifest in a comparison of two years worth of Woodcock Reading Mastery Test scores which measured the student’s ability to utilize decoding strategies for purposes of reading novel words. This specific skill development, Dr. Armstrong argued, was central to student making effective progress toward becoming an independent reader. In this area, the student had actually regressed over the year. Similarly, the Gray Oral Reading Test (“GORT”) scores, which measure reading rate, fluency, accuracy and comprehension, while not demonstrating regression, indicated a widening gap between the student’s skills in this area and those of his peers. Other focused measures, such as the Test of Written Language showed that the student’s written expression had not improved. As a result, parents’ experts testified that there was a “real risk” that the student would become increasingly disengaged from the learning process and withdraw from school. Hingham’s testing showed that the student consistently scored within the average range and appeared to be a relatively normal reader. Hingham’s MacMillan McGraw Hill test, a multiple choice test, showed reading comprehension improvement from eighty percent to ninety-four percent during his fourth grade year. Similarly, the Hingham-administered Dynamic Indicator of Basic Skills (DIBELS) showed improvement in his rate of reading over the same time period. The hearing officer endorsed the parents’ experts’ discrediting of Hingham’s “informal testing.” The use of multiple choice formats enabled the student to compensate for his continued reading deficits by using his intelligence to gain information from the reading comprehension sections and make choices. The hearing officer also credited the parents’ expert Dr. Kaufman because of her vast experience, including substantial work in academia and consulting with public schools. In addition, the hearing officer was impressed by Dr. Kaufman having spent eight years as the teacher in charge of a learning disabilities mainstreaming program within the Cambridge Public Schools. Dr. Kaufman also had previously supported the student’s placement in the inclusion model. Notably, the fact that the parents’ experts gave credit where credit was due, commenting on the “impressive” parts of Hingham’s program and even offering suggestions about how to do their inclusion model better, only served to bolster their credibility. The hearing officer also found that the overwhelming weight of the evidence supported the finding that Landmark’s program was appropriate. Therefore, the hearing officer ordered reimbursement for, and prospective placement at, Landmark. Another hearing officer decided two Landmark School cases within three days of each other with essentially opposite results, Pentucket Regional School District, BSEA #11-5530, 17 MSER 150 (2011) and Wellesley Public Schools, BSEA #10-6553 and 10-8510, 17 MSER 161 (2011). Pentucket involved a student who, prior to his unilateral placement at Landmark, had never been enrolled in public school. He began Landmark in his fifth grade year and was in his seventh grade there at the time of the hearing. Private testing revealed that the student was devoting much of his cognitive resources to lower level, more mechanical tasks for both reading and writing. Many of these scores, similar to the “informal testing” in the Hinghamcase above, fell in the average to above average range. Certain refined testing revealed more concerning deficits. For example, the Reading Fluency Indicator test showed that the student was able to read a fourth grade level list of works well enough to measure his fluency at the fourth grade level. However, when correctly-read words per minute were factored in, his scores fell solidly within the second grade range. Later testing showed similar deficits in significant areas. Pentucket proposed a language based program for the student for the first time for the 2010-2011 school year, the student’s seventh grade year. The parents kept the student enrolled in Landmark and sought reimbursement for his past attendance there as well as funding going forward. In judging the appropriateness of Pentucket’s inclusion IEP for the February 2009 to September 2009 time period, the hearing officer restated the well established principle that an IEP is a “snapshot.” In that regard, the IEP must take into account what was, and was not, objectively reasonable when the snapshot was taken and the IEP developed. The previous IEPs were held not to have been reasonably calculated to provide the student with FAPE in the least restrictive environment. Pentucket had sufficient knowledge at the time of those IEPs of the student’s weaknesses and needs, and those weaknesses and needs established that he required a language based program. Pentucket did not challenge the appropriateness of Landmark’s program. Because parents did not provide notice of the unilateral placement to Pentucket until after he was enrolled at Landmark, Pentucket was ordered to reimburse the parents for the cost of Landmark beginning 10 business days after the placement there. The September 2009 to February 2010 IEP called for placement in the Bagnell Elementary School language based program. However, that IEP was deficient because of its vague, general and lack of measurable goals and objectives. It omitted certain crucial goals, such as written expression goals and failed to contain specific and measurable goals in reading and language arts. Because special education law clearly requires a school district to develop an IEP that contains measurable goals and addresses all areas of need, the proposed IEP was deficient. Reimbursement for the costs of Landmark was ordered for that IEP period. The August 2010 to April 2011 IEP called for student’s placement in a language based program but at the middle school program. This IEP was found to contain appropriate and detailed goals in all areas of the student’s needs. The parents’ attack on the middle school language based program was doomed by the fact that none of the parents’ experts or the student’s private evaluators ever observed the middle school language based program. As we have frequently pointed out in these commentaries, a parents’ claim for funding an outside placement has no chance of success without the parents’ establishing the inadequacy of the program proposed by the public school. That task is often more difficult without an observation of the proposed program. It was no surprise, accordingly, to see the parents’ claim for reimbursement for Landmark during this last IEP period denied. The student in Wellesley was unilaterally placed at Landmark in August 2009, the beginning of his fourth grade year. Prior to that, he was enrolled in Wellesley’s Primary Language Program (“PSP”) for two years. The PSP program was designed for students with average cognitive abilities who have language based learning disabilities. Literary and math instruction was provided in small group or individual settings. PSP staff accompanied students in their inclusion classes. Whereas the hearing officer in Hingham found that the parent’s experts’ positive comments on the public school program bolstered their credibility, this hearing officer found that earlier positive comments undercut the later opinion of the parent’s experts criticizing the district’s program. The hearing officer referred numerous times to the compliments paid to the PSP program by the student’s mother and expert. For example, the hearing officer found that the reading specialist privately engaged by the family to provide tutoring gave confusing and contradictory testimony. For example, she testified about the concerns she had for the student’s reading program and progress while she had noted in her May 2007 letter supporting the student’s application to the Carroll School that the student had made progress in reading during the year and his literacy skills had recently jumped. She also stated that the student had made a “significant gain” in reading as of January 2009. Similarly, the hearing officer quoted from a February 12, 2009 “thank you note” from the parents to PSP staff for their efforts and the student’s progress. Taking such statements out of context will only serve to make private evaluators and parents reluctant to give credit where it is due or take a balanced view for fear that positive statements about a school’s program might be used against them someday. This will only result in parents and evaluators being more critical of public school programs or grudging in their acknowledgement of accomplishments. The hearing officer found that Wellesley had adjusted the student’s IEP as new information became available. She credited the testimony of Wellesley personnel that the student made progress during his second grade year in the PSP program. This was measured by such things as his progress in Wilson reading levels. In addition, no expert testified that the student required an outside placement for the 2009-2010 school year. According to the hearing officer, there was a lack of evidence that the student would have failed to have made effective progress in the Wellesley program. Wellesley increased the services in the 2010-2011 IEP. They considered information from Landmark and proposed that the student be placed in the ISP program, which was very similar to the PSP program.

Commentary on Massachusetts Special Education Decisions: 2nd Quarter, 2011, by Daniel T.S. Heffernan

April 03, 2011

Introductions

This quarter’s fourteen decisions provide insight into a wide variety of determinations made by the BSEA. There is an instructive comparison between two decisions by the same hearing officer involving unilateral placement at the Landmark School which yielded different results. There are also decisions involving a METCO student, an exception to the statute of limitations, a parent’s “acceptance” of an IEP not equaling “consent” to that IEP, as well as a tort action on behalf of a student sexually assaulted at school by a school employee. Significantly, this quarter’s decisions reflect a recent trend in litigation before the BSEA: bringing motions that seek to dispose of all or part of the action short of a full hearing. Of this quarter’s fourteen decisions, seven were rulings on motions to dismiss or for summary judgment and a “partial decision.”

Dispositive Motions

In Massachusetts Superior Court and Federal District Court, motions to dismiss and for summary judgment have long been standard fare. Tracking orders which establish deadlines for lawsuits in those forums always provide dates for the filings of motions to dismiss and summary judgment. In BSEA actions, while the procedure for filing such motions has always existed, it is only recently that an increasing number of BSEA litigants, parents and school districts alike, have availed themselves of this option. Both the BSEA Hearing Rules (Rule 17B) and Massachusetts Executive Office of Administration and Finance Adjudicatory Rules of Practice and Procedure (801 CMR 1.01(7)(g)3)) empower a hearing officer to allow a motion to dismiss if the moving party fails to state a claim upon which relief can be granted. Since the rule is analogous to Rule 12(b)(6) of both the Massachusetts and Federal Rules of Civil Procedure, BSEA hearing officers have generally used the same standards as those courts in deciding motions to dismiss for failure to state a claim. A motion to dismiss should be granted only if the party filing the appeal can prove no set of facts in support of his or her claim that would entitle him or her to relief that the BSEA has authority to order. A hearing officer may dismiss a case if the hearing officer cannot grant relief under the federal or state special education statutes or relevant portions of Section 504. In acting on a motion to dismiss, courts typically consider only the complaint and answer. If other materials, such as affidavits, are submitted, the motion is often converted to a motion for summary judgment. The hearing officer may consider other information without formally converting the motion to one for summary judgment if there is no prejudice to either party. The standard for deciding motions to dismiss and summary judgment vary significantly. For motions to dismiss, the hearing officer must accept as true all well pleaded factual averments and draw all reasonable inferences in favor of the party opposing dismissal. In summary judgment motions, a court will determine whether there is “any genuine dispute as to any material fact” and if there is not, decide whether or not to enter judgment on all of part of the lawsuit. Practitioners and litigants should consider motions to dismiss and for summary judgment an important arrow in their litigation quiver. However, like any weapon, it is only effective if used properly and in the appropriate situation. Such motions typically involve fewer resources and time than a full evidentiary hearing. They may dispose of an entire claim. In situations where they dispose of only a portion of the claim, it may lead to settlement of the remaining claims or at least a more streamlined hearing. However, futile motions only serve to delay the ultimate resolution of the claim and waste the resources of the litigants and the BSEA.

Failure to provide translated notice of procedural rights and IEP negates the district’s defenses

In Boston Public Schools, BSEA #11-4676, 17 MSER 76 (2011), the hearing officer amended his previous ruling allowing Boston’s motion to dismiss. The student involved was 20 years old and attended East Boston High School. He was diagnosed with significant cognitive delays and was on an IEP from Boston since 1993. Although he was bilingual, his parents were not. The parents sought prospective and compensatory relief for the student and claims relating to transition services. Previously, the hearing officer had dismissed the parents’ claims for their failure to bring them within the applicable IDEA statute of limitations, which provides, at 20 USC § 1415(f)(3), that “a parent or agency shall request an impartial due process hearing within two years of the date the parent or agency knew or should have known about the alleged action that forms the basis of the complaint. . .” In the instant action, the parents had not brought the action within two years and therefore the action was dismissed. The parents sought reconsideration pursuant to the exception to the statute of limitation bar: “The timeline described in subparagraph (C) shall not apply to a parent if the parent was prevented from requesting the hearing due to. . .(i) specific misrepresentations by the local educational agency that it had resolved the problem forming the basis of the complaint; or (ii) the local educational agency’s withholding of information from the parent that was required under this subchapter to be provided to the parent.” To meet this exception, parents must demonstrate that requisite information was not provided and second, that the parent was thereby prevented from timely requesting the due process hearing. Boston failed to provide, as required, translated notices of procedural safeguards for 2005-2006, 2006-2007, 2007-2008, and 2008-2009 school years. This hearing officer held that failure to provide this notice implicates both requirements of the exception to the statute of limitations, for how can a parent be required to request a hearing within a certain time frame when not told of that deadline? Boston also sought to dismiss claims relating to the appropriateness of earlier IEPs because they had been accepted by the parents. The general and well settled rule is that acceptance of an IEP precludes a hearing officer from thereafter considering its appropriateness. Several BSEA decisions have established this: In re: Yale and Upper Cape Cod Regional Technical School and Sandwich PublicSchools, BSEA #06-0501 & 06-0808, 11 MSER 200 (2005), In Re: Quabbin, 11 MSER 146 (2005); as well as the Federal District Court; Doe ex rel. Doe v. Hampden-Wilbraham Regional School Dist., 715 F.Supp.2d 185, 194-195 (D.Mass 2010). However, here again, Boston’s failure to comply with the requirements regarding non-English speaking families led to an exception to this rule. The IEPs for the student when he was under 18 years old were not written in the parents’ native language. While the term “accept” is utilized on Massachusetts IEP forms and generally referred to in BSEA decisions regarding IEP responses and found in Massachusetts special education regulations, the regulations do not define “accept.” However, Massachusetts regulations refer to “consent” and the federal IDEA regulations use consent instead of accept. The federal regulations define consent, at 34 CFR §300.9(a), in part to mean, “The parent has been fully informed of all information relevant to the activity for which consent is sought, in his or her native language, or other mode of communication.” Because of Boston’s failures to provide the IEP in the parents’ native language, and drawing all inferences in the parents’ favor in ruling on Boston’s motion to dismiss, the hearing officer found that Boston’s failures precluded parents from providing legally effective acceptance of the IEPs and therefore denied Boston’s motion to dismiss on this ground. As to the 2008-2009 IEP, when the student was 18, neither the parents nor the student attended the IEP meeting. Boston failed to invite the student to the team meeting (34 CFR §300.9(a)) and failed to comply with their affirmative duty to schedule the meeting at a mutually agreed on time and place (34 CFR§300(9)(a); 603 CMR 28.02(4)), or document that before holding a meeting without the parents it had made phone calls, visits, etc. in an attempt to schedule the meeting at a mutually agreeable time and place (34 CFR§300.321(b)(1)). Because of these failures, and again under the motion to dismiss standard, the hearing officer found that Boston’s failures precluded the student from providing legally-effective acceptance of the IEP and therefore denied the motion to dismiss. In Bridgewater-Raynham Public Schools, BSEA #11-6444, 17 MSER 91 (2011), the hearing officer ruled on parents’ motion to dismiss Bridgewater-Raynham’s hearing request seeking substituted consent for an evaluation of a sixth grader. Parents had previously filed a hearing request that was withdrawn after the parties reached agreement in their resolution session. At that resolution session, they agreed to have the student undergo multiple evaluations by Bridgewater-Raynham and READS Collaborative. The Team reconvened after these evaluations and minor changes, requested by parents, were made to the IEP, but not signed by the parents. Subsequently, the parents, through their advocate, wrote to Bridgewater-Raynham to request an independent evaluation by a psychologist. Three days later, the director of special education responded requesting that the parents identify what evaluation they disagreed with and why, and requested information regarding the proposed independent evaluation as well as the parents’ financial information. The parents filed a complaint with DESE’s Program Quality Assurance (“PQA”). When PQA learned the parents had scheduled a mediation, PQA set aside their complaint. They reopened it when the mediation was cancelled. Bridgewater-Raynham requested parents’ consent to evaluations in speech and language and psycho-educational areas. When parents refused to consent, Bridgewater-Raynham filed its hearing request. Parents first argued that the BSEA should not hear the matter because the PQA was investigating these issues. The hearing officer dismissed this notion, because the BSEA essentially preempts the jurisdiction of the PQA. Support for this proposition is located even within the DESE PQA Services, Compliance and Monitoring, Problem Resolution System Information Guide which states that federal law prohibits the DESE from investigating a complaint where the parties are engaged in a BSEA proceeding relating to the same issues. While the parents maintained that Bridgewater-Raynham instituted the BSEA proceedings simply to derail or deny the parents’ right to a PQA investigation, at the motion to dismiss stage there was no evidence to draw such a conclusion. The hearing officer characterized Bridgewater-Raynham’s attempt to conduct further evaluations seven months after their previous comprehensive evaluations as an attempt to get a “second bite at the apple.” Therefore, Bridgewater-Raynham’s request for this was dismissed. The hearing officer then examined parents’ request for an independent evaluation and Bridgewater-Raynham’s response. Under the hearing officer’s strict reading of Massachusetts regulations, she held that 603 CMR 28.04(5)(d) accords the district only two options in responding to such requests: pay for the evaluation or request a hearing within five days. While the parents’ letter requesting the independent evaluation was deficient in certain respects, the district’s response was insufficient to toll the five day deadline, and since Bridgewater-Raynham failed to file a hearing request within five days, it was obligated to fund the independent evaluation. The hearing officer not only dismissed the hearing request, thereby preventing the district from reevaluating without the parents’ consent, but also affirmatively ordered Bridgewater-Raynham to fund the independent evaluation after parents provide more information about that evaluation. In Springfield Public Schools, BSEA #11-4290, 17 MSER 81 (2011), an Educational Surrogate Parent (“ESP”) sought an order determining that the ESP’s retention of an attorney to file and prosecute a hearing request on behalf of the ESP and the student is a reasonable expense related to the ESP’s responsibilities as a surrogate parent. It was also argued that the school district should reimburse the ESP or in the alternative, have the DESE, Department of Children and Families or Springfield provide a funding mechanism for that purpose. The student was a 16 year old and in the permanent custody of the DCF. It is well settled that the BSEA lacks authority to award attorney fees even to prevailing parties—that authority rests with the appropriate state or federal court. There is also nothing in state or federal special education statutes that grants parents the right to publicly funded counsel. Therefore, since the ESP had failed to “state a claim upon which relief may be granted,” the motion to dismiss was allowed. (That said, while the hearing officer may have been correct in the ruling, this matter reflects a serious gap in the effective rights and protections that a person for whom an ESP must be appointed should have. Money should be allocated within a responsible agency—be it DCF or DESE—and legislative attention should be paid to the injustice of a situation that effectively denies a student effective access to due process.) The school district in CBDE Public Schools, BSEA #10-6854, 17 MSER 107 (2011) asked the hearing officer to dismiss a claim arising from the sexual assault of a student because the BSEA lacks authority to grant the requested relief of monetary damages. The student’s hearing request alleged that a CDBE employee raped the student, who was 14 years old at the time and not yet determined eligible for special education or Section 504. As a result of the rape and continued contact with the alleged perpetrator for months, the student was severely traumatized. This was manifest in escalating behaviors and emotional outbursts that resulted in her hospitalization on two occasions. The parents allegedly “begged for help” from the school for the student. The hearing request claimed that CBDE should have identified the student as having a disability and needing special education or related services pursuant to its “child find” responsibilities under federal special education law. Had it done so, the hearing request alleged, the rape would have been discovered earlier and the student would not have suffered such trauma or needed hospitalizations. The hearing request sought three types of relief: CBDE’s funding of a therapeutic placement; reimbursement for parents’ funding of her placement; and, lastly, monetary damages for negligence, loss of consortium, the rape, emotional distress and other torts. The first two claims were dismissed by the hearing officer previously after the parents signed the IEP for prospective placement and no placement costs had been incurred by the parents. Concerning the claim for monetary damages, CBDE sought dismissal because the BSEA could not award that requested relief. This same hearing officer had, in Mashpee Public Schools, 14 MSER 143 (2008) and 14 MSER 156 (2008), provided an extensive analysis of the BSEA’s role in the litigation of such damages actions. “Exhaustion” is the requirement that disputes arising out of the provisions of special education services must first be brought to the BSEA before proceeding to federal or state court. In some of those decisions, courts had dismissed actions that were not first fully litigated at the BSEA, even if the claim was solely for monetary damages and did not involve claims brought under the IDEA. In Mashpee, the primary focus of the hearing officer’s decisions related to the scope of the hearings before him and the parameters of his decision. In the instant case, the hearing officer again reviewed the leading court cases regarding exhaustion and found that the BSEA is required to conduct fact finding even when it cannot award the damages the parents seek. The hearing officer noted that if he ruled otherwise, it was his belief that the dispute would likely be returned to the BSEA by a state or federal court for failure to exhaust administrative remedies. The hearing officer in New Bedford Public Schools and Cody, BSEA #09-3103, 17 MSER 131 (2011), ruled on numerous motions to dismiss, resulting in the dismissal of all the claims before him. The student, who was in the custody of DCF as a result of a Child in Need of Services (“CHINS”) petition, had been placed at St. Vincent’s day and then residential program. The parent filed the hearing request against New Bedford and DCF in November 2008. The parties agreed to submit an agreed statement of facts and motions for summary judgment solely on the issue of the student’s stay put rights. In February 2009, the hearing officer denied the parent’s motion for summary judgment but allowed New Bedford’s, determining that the stay put rights did not arise from the student’s placement at St. Vincent’s by DCF for custodial, non-educational purposes. The parent appealed to superior court. Then the parent agreed to place student “on a temporary basis” at the district’s Westside School. In addition, the parent regained custody from the DCF and consented to the dismissal of the CHINS. The BSEA, at the request of all parties, placed the proceeding “off-calendar.” In January 2010 New Bedford proposed an IEP for January 15, 2010 to January 15, 2011 placing the student at Trinity Academy (formerly Westside School). Parent consented, again maintaining that this was a “trial period placement.” New Bedford moved to dismiss the parent’s BSEA appeal citing BSEA Rule 18(D) which provides: “A case that has not been rescheduled, withdrawn, or requested to be scheduled by either party for a period of one year from the original request for hearing shall be dismissed with prejudice.” New Bedford also noted that while the BSEA appeal lay dormant, the parent had accepted two IEPs. In March 2011, the superior court allowed New Bedford’s motion for summary judgment and DCF’s motion to dismiss and dismissed the parent’s court complaint on the grounds that the BSEA’s February 2009 BSEA rulings were correct and there was no longer any actual controversy regarding the placement issue from 2009. The hearing officer followed suit and allowed New Bedford’s and DCF’s motions to dismiss. The hearing request addressed the St. Vincent’s placement and since the student had left there long ago and the hearing request was never amended to address the student’s new placement, the hearing request was moot. In addition, the parent had accepted the IEPs and the hearing officer would not re-open accepted IEPs, especially since they had already expired. The parent’s hearing request was therefore dismissed with prejudice.

The motion to dismiss standard applied to “never darken my door again” settlement agreement

The BSEA’s allowance of motions for summary judgment and dismissal disposed of a parent’s hearing request in Ipswich Public Schools, BSEA #11-7213, 17 MSER 135 (2011). The parties had entered into a settlement agreement that contained a “never darken my door again” clause. Such clauses typically involve an agreement for funding from the school district in exchange for an agreement that beyond a certain date the school district would not be obligated to provide or fund special education services. The BSEA has previously upheld the validity of such clauses. See In Re: Peabody Public Schools, 15 MSER 154 (2009). In exchange for funding an outside day placement, the parent waived the right of the student to receive services of any kind after June 2012 regardless of whether or not the student received a high school diploma. The exception to this never darken my door clause was if a “catastrophic change in circumstances” arose. This term was defined as “the occurrence of an event which causes serious and prolonged physical or emotional injury resulting in a material and substantial change in [student’s] functioning. Further clarifying, an exacerbation of [student’s] emotional disabilities (including but not limited to, PTSD, OCD, depression, anxiety, and/or suicidal ideation) shall not constitute ‘Catastrophic Circumstances,’ even if such exacerbation results in prolonged hospitalization or need for psychiatric treatment.” The dispute before the hearing officer was the applicability of the exception to, and the validity of, the never darken my door again clause. The student was hospitalized at Cambridge Hospital for nine days and then referred to the Acute Residential Treatment Unit at McLean Hospital. The parent maintained that the agreement was void because the student now required a residential placement. The parent did not assert that there was a catastrophic change in circumstances and presented no expert support or other support to dispute the District’s contention that the hospitalizations were simply an exacerbation of student’s previous condition. The parent also argued that as a matter of public policy agreements containing such never darken my door agreements should be voided since, if not, they would be allow to trump federal law requiring FAPE. The hearing officer held that it has been well established that such clauses are enforceable and not against public policy. He also noted that the parent, who appeared pro se, had been a licensed attorney for twenty years and should have understood what she waived in exchange for the funding. Parents and their attorneys should consider the downside to agreeing to such clauses. However, virtually every agreement calls for some compromise or waiver of claims and the decision to bargain away rights for educational services beyond a set date may be, on balance, a wise one. Parents and their representatives should assume that they are enforceable. They must consider carefully the potential contingencies and “what ifs” that appear at the time of the agreement to not be possible or very probable. They should also attempt to seek an escape clause that will allow the student to continue to receive services if a material and unanticipated change occurs. In point of fact, the particular language of this agreement seems to us to be over-reaching insofar as it contemplates some extremely serious and life-altering consequences in a student’s change of circumstances that, just because they can be traced to the original disability would preclude continuing the district’s responsibility for the student past the end date of the agreement. We would urge districts to back off from the draconian implications of such language and parent advocates to fight against the insertion of such provisions. The parents in Westborough Public Schools and Hal, BSEA# 10-7493, 17 MSER 75 (2011), pursued another more frequently employed pre-hearing request: seeking to join a state agency— the Department of Developmental Services (“DDS”). The student, a 13 year old with significant delays in all areas of functioning, was receiving DDS services in his home. The parents filed the hearing request seeking a residential placement and a determination that either Westborough or DDS must fund the residential portion of his program. Toward that end, the parents sought to join DDS to the proceeding. Westborough did not oppose the motion. The statute providing for the jurisdiction of the BSEA over state agencies such as DDS—MGL c.71B, §3, as well as the regulation addressing it, 603 CMR 28.08(3)—and BSEA Hearing Rule 1(F), 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 to 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. The hearing officer examined DDS’s rules and regulations and determined that the student was not generally eligible for DDS residential services because of his age. The relevant DDS regulation, 115 CMR 6.03, provides that a person with mental retardation over 18 years old is sometimes entitled to residential services subject to funding and availability. Therefore, since the student in question was 13, joining DDS would serve no productive purpose and the motion was denied.

An expedited “partial decision” on restraint issue

Although not a ruling on a dispositive motion, the hearing officer, at the request of both parties issued a “partial decision” about a discrete issue shortly after a five day hearing in Norwood Public Schools, BSEA #11-5444, 17 MSER 147 (2011). The parties had requested that the hearing officer rule on Norwood’s use of a “hip stabilizing belt” while feeding the student as soon as possible. The hearing officer obliged, issuing this partial decision within the week after the last day of hearing and within four days of written argument on the issue. The student had Pervasive Developmental Disorder (“PDD”) along with many medical concerns related to feeding. Norwood sought to use the hip stabilizing belt for the limited purpose of assisting with feeding and purportedly making it safer. Parents argued that the belt was not necessary and constituted an unauthorized restraint. The hearing officer found the decision to use the hip stabilizing belt to be comparable to a school district’s selection of a particular methodology of instruction and as such, entitled to deference from a BSEA hearing officer. The hearing officer further credited the district’s expert witnesses in this regard based on their longer observation of the student and was persuaded that the use of the hip stabilizing belt substantially improved his food intake and decreased the risk of choking. However, the hearing officer also deemed the hip stabilizing belt to be a “restraint” pursuant to 603 CMR 46.00 as it clearly limited “the physical freedom of an individual student by mechanical means.” As such, it could only be used if Norwood first complied with the requirements of the restraint regulations. Those regulations prohibit the use of mechanical restraints unless explicitly authorized by a physician and approved in writing by the parent or guardian. Since the parent refused to authorize the use of the hip stabilizing belt, Norwood could not employ it on the student. The hearing officer then suggested a possible way for Norwood to use the belt. 603 CMR 46.02(5)(a) provides: “A protective or stabilizing device ordered by a physician shall not be considered mechanical restraint.” Therefore, if Norwood obtained such a physician’s order, it could use the hip stabilizing belt. Until such time, they were precluded from using it.

What are the responsibilities of the host district for a METCO student?

Lincoln Public Schools and Boston Public Schools, BSEA #11-4678, 17 MSER 95 (2011) involved a first grade student from Boston who had been attending school in Lincoln since September 2009 with the METCO program. Lincoln proposed an IEP calling for a substantially-separate, language based program for the student. Significantly, Lincoln did not have such a program or sufficient and appropriate peers to develop one. Therefore, Lincoln proposed placement back in Boston Public Schools and Boston stated that they were ready to place the student immediately into such a program. Parents opposed this placement, arguing that Lincoln should offer more services and support to educate the student in Lincoln’s mainstream. Lincoln presented detailed testimony about the student’s struggles in the inclusion classroom and how increased services from Lincoln still did not provide the student with enough support. They testified that while the student had made individual gains toward IEP goals and objectives, she was still unable to fully participate in first grade curriculum and she was a year below grade level in math and displayed numerous reading difficulties. Lincoln also testified that in class the student was often off task, made inappropriate noises, had emotional outbursts and difficulty initiating or sustaining independent play with peers. However, the most recent report card showed that despite her weaknesses, the student, with a modified curriculum and supports, was developing and making progress. Lincoln explored the CASE Collaborative but found that it did not have an appropriate peer group for the student, would not have allowed integration into mainstream classes and would have required an hour commute to the program. Members of the Advocating Success for Kids (“ASK”) program at Boston Children’s Hospital evaluated and observed the student and testified on behalf of the parents. The hearing officer did not detail their testimony nearly as much as that of the Lincoln witnesses. They testified that the current Lincoln program could be made appropriate with additional modifications and increases in services. They also testified that student seemed happy in the Lincoln program. The hearing officer found that maintaining the student in the Lincoln program with additional services would require an increase in one to one services, making the student “more adult dependent” resulting in greater alienation between her and her peers and resulting in her attending a more restrictive placement than the sub-separate program proposed. Therefore the hearing officer ordered that the placement be in Boston’s sub-separate language based program. While the decision was issued on April 29, 2011, the hearing officer ordered that the change not be made immediately because the student was happy in the Lincoln program and such a transition late in the school year would be difficult for the student.

The push to create a comparable program closer to home unsuccessful in light of thestrong out of district program

The dispute in Northampton Public Schools, BSEA #11-4229, 17 MSER 139 (2011) centered on the parents’ desire to have their son educated closer to home. The student was 10 years old at the time of the hearing and was diagnosed with dystonic quadriplegic cerebral palsy in the severe range, cortical visual impairment, and apraxia of speech. He was non-ambulatory and used a wheelchair for transportation, communicated through vocalizations, an ECO augmentative communication device, a communication notebook, Mayer-Johnson picture symbols and a Little Step-by- Step switch. Northampton granted the parents’ request for a referral to the Perkins School for the Blind in Watertown, Massachusetts. He was accepted and began attending there in September 2010. Although the student was accepted as a residential student, the parents initially transported him from Northampton to Perkins each day. Northampton had understood that Student would attend Perkins as a residential student because of its distance of approximately 100 miles from student’s home. Perkins staff also assumed that he would be a residential student due to the distance that he lived form Perkins. Northampton did not become aware that student was being driven to and from Perkins every day until the end of September. Student attended most days in September, but was sometimes late. Student’s attendance record shows that he was present for at least some portion of 48 of 70 possible days during his period of attendance at Perkins. Those numbers did not include days on which he was tardy and missed a portion of his programming. The student spent his first night at Perkins on September 30, 2010 and spent approximately 17 of a possible 53 nights at Perkins during the course of his attendance. During November, the student was absent 11 of a possible 19 days. In December he was absent eight of a possible 13 days. Perkins staff testified that his stays in the residence were largely successful. The hearing officer noted with obvious admiration that Perkins offers a superb, well-integrated program. Perkins staff only wished they had more time to work with him. The IEP developed for the placement was extremely comprehensive both in terms of goals and objectives, and services. In January 2011, the parents rejected the substantially separate setting and delivery of all services in Grid C. During the 2009 and 2010 summers, the student attended Augmentative and Alternative Communication (“AAC”) summer camps which Northampton funded. The focus of the camp was on communication and training students’ paraprofessionals. At the AAC summer camp, the student was able to tolerate the noisy environment and the use of the ECO longer and more efficiently than he previously had. He was also joining into conversations with peers using the ECO. His use of the ECO was more efficient than it previously had been. Hillary Jellison was a speech and language pathologist who focused primarily on people who use augmentative and alternative communication (“AAC”) devices. Ms. Jellison testified that the student needs a staff person with experience in AAC. Ms. Jellison had a contract with the Holyoke Public Schools to provide consultation regarding AAC. She was familiar with a “program” at the E.N. White School in Holyoke through discussions with her business partner, Nerrissa Hall, as well as the special education director in Holyoke. There were two students in that program, both younger than the student and one with a similar profile. The parents sought to have student attend a program that Ms. Jellison and Ms. Hall proposed creating: an AAC classroom in September 2011. The proposed program, which did not yet exist, would be designed to provide students with access to a regular education classroom, occupational therapy, physical therapy, speech language therapy, and an AAC resource room. Ms. Jellison or Ms. Hall would run an “AAC classroom” where students would spend one to two hours per day. The student would be in an inclusion classroom for the rest of the day. There would be a paraprofessional in class and there could be two other students in the classroom. The student’s ECO would be mounted and available to him at all times. The parents sought this program because it would allow the student to live with his family and community. This case stands as yet another reminder that when a parent seeks a placement other than that proposed by the school district, the focus is primarily on the adequacy of the public school program: in this case, Perkins. The appropriateness of the alternative program will not even be considered unless the district’s program is found to be inappropriate for the student. Here, the hearing officer praised the Perkins program in general as well as the specific IEP for the student. The testimony of the highly qualified parents’ expert criticizing the Perkins program was discounted because she was not familiar with the Perkins program and had not observed the student there or even spoken with his service providers at Perkins. The hearing officer ruled that the Perkins IEP was reasonably calculated to provide the student with FAPE in the least restrictive environment. Although not required, the hearing officer took the opportunity to opine about that the proposed program was not appropriate for the student for several reasons, including the lack of specifics about the program as well as no assurance that the program would ever come to be. However, the hearing officer encouraged the parties to explore the possibility of developing this program in Holyoke.

Stay put for a transferring student

The student in Leominster Public Schools, BSEA #11-5122, 17 MSER 83 (2011) was a nine-year-old boy with autism and various medical issues, including eczema, asthma and allergies. Prior to moving to Leominster, the student lived in Haverhill. Under Haverhill’s 2009-2010 IEP, not accepted by the parents until April 15, 2010, the student had a 1:1 aide and various services, including extended school day and year. He was placed at the Therapeutic Educational and Assessment Center of Haverhill (“TEACH”). The student was enrolled in Leominster on May 3, 2010. The student began attending the PDD program at the FLLAC Collaborative. After one month in that program, Leominster proposed a new IEP which was rejected by the parents. This IEP called for placement at FLLAC as well as extended year services. The parties had a facilitated team meeting on September 30, 2010 and Leominster proposed a new IEP. The IEP called for extensive services and extended school year, but not extended day as had been provided for in the Haverhill IEP. The parents rejected this IEP, maintaining that the student required extended day services, a longer summer program and a placement in a separate day program. This last point appeared to be a matter of semantics in the label, since FLLAC was a separate program but housed in the Leominster’s Houghton Elementary School, and therefore not considered a “separate day program.” Leominster filed the hearing request seeking a determination that its IEP provides FAPE and the parents have no stay put rights from the previous Haverhill IEP. The parents removed the student from school for several weeks beginning in December 2010, and did not return the student on a consistent basis until the second week of February, 2011. Prior to his removal, district staff testified that the student’s maladaptive behaviors had decreased. They spiked up when he returned to school in February. The staff also testified extensively and with great specificity that the student was making effective progress in the FLLAC program. Certain set backs or slow progress were attributed to his extensive absences from school. There was also a dearth of evidence that the proposed IEP would not provide FAPE. The student’s mother testified that she was content with the goals and accommodations. In addition, no expert testified that the student required a longer summer program to prevent substantial regression or that he required an extended school day. Concerning the stay put issue, Leominster, as the receiving school district, was obligated to provide services that were “comparable” to the IEP of the former district. 20 USC 1414(d)(2)(C) (i); 34 CFR 300.323(e); 603 CMR 28.03(1)(c)(1). The hearing officer found, with one exception, that the Leominster IEP provided comparable services. The only relevant difference was that Leominster’s IEP provided fewer weeks of extended year services. As a result, the hearing officer did award the student three weeks of compensatory services.

Three Landmark School unilateral placement cases provide insight into what makes a successful challenge to a school district program

During this quarter three decisions were issued concerning unilateral placements of elementary or middle school students at the Landmark School. Two of the decisions were by the same hearing officer. Each decision yielded different results. While every case is unique, a comparison of these decisions, issued within a short time of each other, offers valuable insight into the viability of claims for funding for programs such as Landmark. The principal dispute in Hingham Public Schools, BSEA #11-3762, 17 MSER 111 (2011) was whether Hingham’s inclusion fifth grade classroom was appropriate for the student. While the parents and their experts endorsed this inclusion and pullout model for years, the parents unilaterally placed him at the Landmark School beginning in fifth grade. The student had a variety of disabilities, including dyslexia, disorder of written expression and ADHD. The parents for the first time rejected an IEP in the spring of the student’s third grade year (March 2009). To resolve the dispute, the parties agreed to share the cost of an independent evaluation by Lorna Kaufman, Ph.D. Dr. Kaufman found that the student was reading below grade level and required increased services. Hingham adopted many of Dr. Kaufman’s recommendations. In the first few months of the fourth grade year the team met twice to review the results of a private speech language evaluation and an observation by Dr. Kaufman. Hingham proposed and revised a new IEP with additional services which was fully accepted by parents in November 2009. This and the fact that Hingham had taken into account these independent assessments led the hearing officer to deny parents’ claims for compensatory relief relative to services provided before the Landmark placement. Student’s mother testified that although the fourth grade year began well, he began deteriorating emotionally, referring to himself as the “dumbest” kid in the class. The mother was also shocked to learn that the student was not included in social studies or science classes, and that his work output was significantly less than other students and often “scribed” by school personnel. At the end of the fourth grade year, parents pressed for student’s placement in a substantially separate, language based program. It was undisputed that Hingham had no such program. Parents unilaterally placed the student at Landmark in September 2010, the student’s fifth grade year. Hingham proposed an inclusion program with significant supports and pull out services. The lines of dispute were clearly delineated in the case—whether or not the student was making effective progress and would continue to do so in Hingham’s inclusion model. As is often the case, the matter boiled down to a battle of the experts. What is most significant about the hearing officer’s comparison of the experts’ opinions, is his willingness to delve beneath broad assessments of how many grade levels the student was behind in reading or had gained, etc. Instead, this hearing officer examined more focused assessments of certain deficits and weighed the utility of various test instruments. For example, one of the parents’ experts, Kira Armstrong, Ph.D. argued that the student had not made sufficient progress in decoding skills. This was manifest in a comparison of two years worth of Woodcock Reading Mastery Test scores which measured the student’s ability to utilize decoding strategies for purposes of reading novel words. This specific skill development, Dr. Armstrong argued, was central to student making effective progress toward becoming an independent reader. In this area, the student had actually regressed over the year. Similarly, the Gray Oral Reading Test (“GORT”) scores, which measure reading rate, fluency, accuracy and comprehension, while not demonstrating regression, indicated a widening gap between the student’s skills in this area and those of his peers. Other focused measures, such as the Test of Written Language showed that the student’s written expression had not improved. As a result, parents’ experts testified that there was a “real risk” that the student would become increasingly disengaged from the learning process and withdraw from school. Hingham’s testing showed that the student consistently scored within the average range and appeared to be a relatively normal reader. Hingham’s MacMillan McGraw Hill test, a multiple choice test, showed reading comprehension improvement from eighty percent to ninety-four percent during his fourth grade year. Similarly, the Hingham-administered Dynamic Indicator of Basic Skills (DIBELS) showed improvement in his rate of reading over the same time period. The hearing officer endorsed the parents’ experts’ discrediting of Hingham’s “informal testing.” The use of multiple choice formats enabled the student to compensate for his continued reading deficits by using his intelligence to gain information from the reading comprehension sections and make choices. The hearing officer also credited the parents’ expert Dr. Kaufman because of her vast experience, including substantial work in academia and consulting with public schools. In addition, the hearing officer was impressed by Dr. Kaufman having spent eight years as the teacher in charge of a learning disabilities mainstreaming program within the Cambridge Public Schools. Dr. Kaufman also had previously supported the student’s placement in the inclusion model. Notably, the fact that the parents’ experts gave credit where credit was due, commenting on the “impressive” parts of Hingham’s program and even offering suggestions about how to do their inclusion model better, only served to bolster their credibility. The hearing officer also found that the overwhelming weight of the evidence supported the finding that Landmark’s program was appropriate. Therefore, the hearing officer ordered reimbursement for, and prospective placement at, Landmark. Another hearing officer decided two Landmark School cases within three days of each other with essentially opposite results, Pentucket Regional School District, BSEA #11-5530, 17 MSER 150 (2011) and Wellesley Public Schools, BSEA #10-6553 and 10-8510, 17 MSER 161 (2011). Pentucket involved a student who, prior to his unilateral placement at Landmark, had never been enrolled in public school. He began Landmark in his fifth grade year and was in his seventh grade there at the time of the hearing. Private testing revealed that the student was devoting much of his cognitive resources to lower level, more mechanical tasks for both reading and writing. Many of these scores, similar to the “informal testing” in the Hinghamcase above, fell in the average to above average range. Certain refined testing revealed more concerning deficits. For example, the Reading Fluency Indicator test showed that the student was able to read a fourth grade level list of works well enough to measure his fluency at the fourth grade level. However, when correctly-read words per minute were factored in, his scores fell solidly within the second grade range. Later testing showed similar deficits in significant areas. Pentucket proposed a language based program for the student for the first time for the 2010-2011 school year, the student’s seventh grade year. The parents kept the student enrolled in Landmark and sought reimbursement for his past attendance there as well as funding going forward. In judging the appropriateness of Pentucket’s inclusion IEP for the February 2009 to September 2009 time period, the hearing officer restated the well established principle that an IEP is a “snapshot.” In that regard, the IEP must take into account what was, and was not, objectively reasonable when the snapshot was taken and the IEP developed. The previous IEPs were held not to have been reasonably calculated to provide the student with FAPE in the least restrictive environment. Pentucket had sufficient knowledge at the time of those IEPs of the student’s weaknesses and needs, and those weaknesses and needs established that he required a language based program. Pentucket did not challenge the appropriateness of Landmark’s program. Because parents did not provide notice of the unilateral placement to Pentucket until after he was enrolled at Landmark, Pentucket was ordered to reimburse the parents for the cost of Landmark beginning 10 business days after the placement there. The September 2009 to February 2010 IEP called for placement in the Bagnell Elementary School language based program. However, that IEP was deficient because of its vague, general and lack of measurable goals and objectives. It omitted certain crucial goals, such as written expression goals and failed to contain specific and measurable goals in reading and language arts. Because special education law clearly requires a school district to develop an IEP that contains measurable goals and addresses all areas of need, the proposed IEP was deficient. Reimbursement for the costs of Landmark was ordered for that IEP period. The August 2010 to April 2011 IEP called for student’s placement in a language based program but at the middle school program. This IEP was found to contain appropriate and detailed goals in all areas of the student’s needs. The parents’ attack on the middle school language based program was doomed by the fact that none of the parents’ experts or the student’s private evaluators ever observed the middle school language based program. As we have frequently pointed out in these commentaries, a parents’ claim for funding an outside placement has no chance of success without the parents’ establishing the inadequacy of the program proposed by the public school. That task is often more difficult without an observation of the proposed program. It was no surprise, accordingly, to see the parents’ claim for reimbursement for Landmark during this last IEP period denied. The student in Wellesley was unilaterally placed at Landmark in August 2009, the beginning of his fourth grade year. Prior to that, he was enrolled in Wellesley’s Primary Language Program (“PSP”) for two years. The PSP program was designed for students with average cognitive abilities who have language based learning disabilities. Literary and math instruction was provided in small group or individual settings. PSP staff accompanied students in their inclusion classes. Whereas the hearing officer in Hingham found that the parent’s experts’ positive comments on the public school program bolstered their credibility, this hearing officer found that earlier positive comments undercut the later opinion of the parent’s experts criticizing the district’s program. The hearing officer referred numerous times to the compliments paid to the PSP program by the student’s mother and expert. For example, the hearing officer found that the reading specialist privately engaged by the family to provide tutoring gave confusing and contradictory testimony. For example, she testified about the concerns she had for the student’s reading program and progress while she had noted in her May 2007 letter supporting the student’s application to the Carroll School that the student had made progress in reading during the year and his literacy skills had recently jumped. She also stated that the student had made a “significant gain” in reading as of January 2009. Similarly, the hearing officer quoted from a February 12, 2009 “thank you note” from the parents to PSP staff for their efforts and the student’s progress. Taking such statements out of context will only serve to make private evaluators and parents reluctant to give credit where it is due or take a balanced view for fear that positive statements about a school’s program might be used against them someday. This will only result in parents and evaluators being more critical of public school programs or grudging in their acknowledgement of accomplishments. The hearing officer found that Wellesley had adjusted the student’s IEP as new information became available. She credited the testimony of Wellesley personnel that the student made progress during his second grade year in the PSP program. This was measured by such things as his progress in Wilson reading levels. In addition, no expert testified that the student required an outside placement for the 2009-2010 school year. According to the hearing officer, there was a lack of evidence that the student would have failed to have made effective progress in the Wellesley program. Wellesley increased the services in the 2010-2011 IEP. They considered information from Landmark and proposed that the student be placed in the ISP program, which was very similar to the PSP program.

Commentary on Massachusetts Special Education Decisions: 1st Quarter, 2011, by Robert K. Crabtree, Eileen M. Hagerty, Daniel T.S. Heffernan, and Michelle A. Moor

January 03, 2011

Introduction

The Bureau of Special Education Appeals (BSEA) issued five decisions and five rulings during the first quarter of 2011 that address a wide range of issues. Three of the five decisions involve requests for out-of-district placements, one decision offers an insightful analysis of a school district’s obligation to provide transportation to a parentally-placed private school student who received speech therapy through the district, and one decision explores parents’ argument that a school district failed to offer the least restrictive placement. Two of the five rulings provide detailed discussions about joining agencies in BSEA disputes; one ruling serves as an important reminder for parents of the potential perils of proceeding to a hearing without an experienced legal advocate; one ruling assesses whether a “screening” can qualify as an “evaluation” that triggers a parent’s right to seek a publicly-funded independent evaluation; and one ruling explores the jurisdiction of the BSEA.

An Overly-Constricted View Of “Education” And What Should Be In An Appropriate Transition Program Blocks A Critical Service

In Granby Public Schools, BSEA #11-0290, 17 MSER 35 (2011), despite undisputed evidence of a 19-year-old student’s inability to control “hostile, violent, self-destructive and self-injurious behaviors” at home and the need for “extraordinary efforts” on the part of his parents to get him to his program on a daily basis, “typically involving 90 minutes of repeated prompting,” the hearing officer concluded that there was no basis on which to order a residential program or a move to a group home “for educational reasons.” The student, David, is described as having “moderate mental retardation, cerebral palsy, a seizure disorder and a bipolar disorder.” The hearing officer credited the testimony of David’s day program witnesses who generally indicated that he was making some progress in the various areas addressed by his IEP. She noted that the only evidence of behavioral problems within that program was years out of date except for some occasional noncompliance, which, she noted, was typical of all the students in the program. As for the home behaviors, the hearing officer credited the undisputed testimony of the parents and a social worker who worked regularly with David that he suffered frequent, very disturbing, and risky behaviors. She also acknowledged David’s need for a tremendous amount of repeated cueing to get him to attend his daily program. Six months prior to the hearing, David was hospitalized for a month due to suicidal ideations and increasingly aggressive behaviors at home. The hearing officer concluded, however, that since he was “making educational progress” within the four corners of his daily program, the school district had satisfied its obligation to provide David with FAPE as well as its obligation to address his need to develop skills necessary for him to transition to life following public school. As she put it, “the credible testimony indicates that David is able to access the curriculum.” She therefore concluded that he did not require residential services “for educational reasons.” The hearing officer distinguished other BSEA cases in which school districts have been ordered to provide residential placements on the ground that, in those decisions, “there has been credible expert testimony showing how and why these students needed residential placement for educational reasons.” “That testimony,” she said, “was lacking in this matter.” This is a troubling analysis. The outcome reflects a too-narrow view of both the scope of IDEA and the type of evidence necessary to support needed services for an at-risk student. It also departs from the line of cases since the reauthorization of IDEA in 2004 that speak to the appropriate components of transition programs. This decision stands in contrast to that of another “David”—David D. of David D. v. Dartmouth School Committee, 615 F. Supp. 639 (D. Mass. 1984). That District Court opinion established long ago the importance of demonstration of mastery and generalization of skills across environments as necessary evidence of genuine learning, for a student whose disability led to serious behavioral and emotional difficulties outside of the structure of his school program. David D. exhibited aggressive and otherwise inappropriate behaviors in the afternoon and evening hours after school. The BSEA hearing officer in that case—like the one in this one—found that the student was “achieving effective educational progress.” That hearing officer had also found that David D.’s behavioral breaches outside of school were “isolated”—a finding not made in the Granby case, as there was no dispute that David of Granby’s behavior was frequent and troubling, even requiring a long hospital stay shortly before the hearing. The judge in David D. noted: “The preponderance of all evidence compels a finding that plaintiff cannot adhere to acceptable standards of behavior when not under supervision or in a carefully controlled setting.” The Court held in David D. that “the ability to generalize social and behavioral skills learned in the classroom is an appropriate part of a special educational program for mentally retarded persons such as plaintiff. David’s need for training to enable him to generalize behavioral control learned in school is therefore one that should be addressed by his IEP.” 615 F. Supp. at 646-647. In the Granby decision, the hearing officer’s discussion of the impact of David’s “gravely concerning” behavioral difficulties at home was limited to whether that behavior “interfered with David’s ability to access the curriculum.” This is as if to say that social/behavioral development—an explicit component of a special education program under our regulations, see 603 CMR 28.02(17)—is to be addressed if and only to the extent that a student’s social or behavioral deficits undermine access to other, more traditional, elements of a school curriculum. The primary problems with this decision, it seems to these commentators, are that the hearing officer allowed the school district to restrict all of its evidence of “progress” to what was happening within the four corners of its program, as if evidence of behavior outside of school was immaterial to the district’s responsibility. She failed to consider how David was going to be prepared for transition to life after school. She looked at the home behavior solely to see if it somehow impeded David’s access to what she called the “curriculum”—limiting her notion of “curriculum” to what the program offered during the hours he was there. But David’s behavior at home was clear evidence of a critical gap in his overall progress toward acquiring the skills necessary to conform his behavior to the standards of civilized community living, which should occupy a central place in David’s individualized “curriculum.” There is no indication in the decision that Granby ever evaluated David’s home-based performance. It clearly should have done so. (See Sutton Public Schools, BSEA # 09-798, 16 MSER 18 (2010), in which the hearing officer did not allow a district to pretend that it was unaware of an adolescent’s toileting issues on the argument that no formal evaluation had identified it as an issue; similarly, here the district had been aware of the home-based problems for quite some time and cannot escape responsibility on a claim of lack of knowledge.) If there was a lack of expert support for the hearing officer to order residential services, how do we reconcile that with the lack of expert support for the argument of the district—which had the burden of proof in this case—that maladaptive behavior outside of its walls was irrelevant to the question of David’s progress and with the district’s failure to produce expert evidence on the issue of whether further services are necessary for David to obtain effective coping, behavioral and social skills across environments? If the case needed an expert, it was the district that should have supplied one. Such an expert would need to give credible testimony examining David’s behavior and describing what it would take for him to become a safe and self-controlled individual, capable of living in group settings and working in potentially frustrating circumstances without decompensation. Finally, if the case needed an expert, and particularly in light of the short remaining window of opportunity for this student to learn the behavioral, self-management and coping skills he needs, what prevented this hearing officer from holding the matter open and ordering the development of an independent expert’s opinion on the key matters before her? Note that in Pentucket Regional School District, BSEA # 10-6783, 17 MSER 1 (2011) (discussed below), there was no expert support for the private placement sought by the parent. However, that hearing officer did not leave it at that. Noting that the student was deteriorating emotionally at home as well as academically, she ordered the district immediately to fund an independent evaluation by a qualified expert and to consider what changes should be made to the student’s program and placement, in light of the evaluator’s recommendations. See also, e.g., Duxbury Public Schools, BSEA #09-0295, 14 MSER 398 (2008).

Credibility Of Parent’s Expert Undermined By Lack Of Direct Information From Teachers And By Unexplained Low Scores In Standardized Testing

Monson Public Schools, BSEA # 10-6892, 17 MSER 12 (2011), concerns a 15- year-old high school freshman with a “double deficit” learning disability affecting both phonological awareness and rapid naming, as well as difficulty expressing himself orally and in writing. The hearing officer held for the school district, and against the parents’ pursuit of an order to place him at a private special education school for children with learning disabilities. Monson illustrates the difficulty of successfully making a case for an outside placement even when, as here, the school district as the party initiating the BSEA proceeding must carry the burden of proof. No matter who bears the burden of proof in a matter concerning a student who has been educated within the district, the district always enjoys the evidentiary advantage of having witnesses who have worked daily with the student and who have control over the preparation of progress reports and report cards as well as the fund of anecdotal information from the classroom that any teacher can selectively bring to a hearing record to support the district’s position. Against this evidentiary armament, as well as the presumption under IDEA in favor of educating students within the “least restrictive” educational environment and the deference given to school district choices of teaching methodology, parents have only the ability to engage independent experts and hope that they will be found credible and persuasive in the expression of their findings and recommendations. The credibility of those experts will ultimately turn not just on credentials (training, certifications, special experience, history as an evaluator including whether the expert has consulted to districts as well as parents), but also on the data upon which the expert bases his opinion. If the expert does not or cannot access a current or proposed program to observe it at length under the typical operating conditions of that program, his testimony will be affected. If he does not obtain information directly from the district’s service providers, his testimony may suffer for a lack of follow-through. If he fails to explain apparent spikes or other anomalies in the results of standardized testing as compared to the testing produced by other evaluators within a relevant time, the impact of his test results will be undermined. In this case, the hearing officer was impressed by the district’s numerous teacher witnesses, particularly one who had a master’s degree in special education and who had worked directly and extensively with the student. The teachers gave consistent and detailed testimony that the student was making good progress— better, in fact, than many students without IEPs. On the parents’ side, the hearing officer was underwhelmed by the parents’ primary witness. She noted that the expert had drawn a number of conclusions during his observation without asking teachers whether those conclusions were grounded in fact—for example, that the student could not read material on his desk because he did not observe the student looking at those materials. She also noted that reading testing completed by that expert included results that were far below the results of other testers, including an educational consultant who had been engaged by the parents, but that the expert did nothing to explain the anomaly in those results as compared to the results of others’ testing. (The parents’ key expert at the hearing found the student’s reading to be at 3rd and 4th grade levels, where an earlier round of testing by another parent-engaged consultant had recorded reading levels at the 6th grade level when the student was a 7th grader.) Lessons for parents and their consultants: apparent spikes in testing results, in one direction or another, compared to other testing need to be explained before those results can be relied upon as a critical basis for a parents’ case. Also, as we have commented numerous times, expert observers need to cross all the “t’s” and dot all the “i’s”, including making all necessary efforts to obtain detailed information from the student’s teachers and other service providers before drawing conclusions material to the ultimate recommendations. Hearing officers have repeatedly discounted the opinion of parent experts because they failed to speak with the student’s teachers. See, e.g., Pittsfield Public Schools & Central Berkshire Regional School District, BSEA # 08-4603, 14 MSER 315 (2008); Southwick-Tolland Regional School District, BSEA # 06-6583, 2 MSER 279 (2006); Chicopee Public Schools, BSEA # 05-2920, MSER 87, (2005). In addition, the “right” of an observer to speak with the student’s teacher has been well established. Northbridge Public Schools, BSEA # 09-2533,14 MSER 348 (2008). This expert should have, according to the hearing officer, inquired of the student’s teachers whether he was correct in concluding that the student could not read the material on his desk when he observed. (We note that the ability to make such an inquiry depends on the school district having cleared the way for teachers to talk directly with the expert, which is often not the case.) One lesson from this ruling for parents and their advocates: scour the records for apparent contradictions. Be fully prepared with your experts to address the accuracy of apparently anomalous evidence—and do not rely on the expert’s assertion that something simply cannot be as the school’s witnesses say it is.

Appropriateness Of The Current IEP “Inconclusive”—An Independent Evaluation Is Ordered

Finding that the evidence about the appropriateness of the current IEP was “inconclusive,” the hearing officer in Pentucket Regional School District, BSEA # 10-6783, 17 MSER 1 (2011), ordered the school district to fund an evaluation by a qualified independent evaluator. The case provides another lesson in the need to have unequivocal expert support for the relief sought. It also illustrates the hearing officer’s authority to fashion relief that may go beyond what either party sought. The parent, who appeared pro se, asserted that the student should be removed from his inclusion 8th grade public school program and placed at The Landmark School, a private Chapter 766-approved school for students with language-based learning disabilities and average to above average cognitive abilities. The parent filed the hearing request, initially claiming that the previous two IEPs were inappropriate and seeking placement at Landmark for both the summer 2010 and 2010-2011 academic year. In her amended hearing request, the parent no longer sought summer 2010 placement or specific placement at Landmark for the 2010-2011 academic year. Instead, she sought “compensation in the form of a free and appropriate educational placement¼for the 2010-2011 school year and 2011 extended year services.” The district maintained that the student made excellent progress in Pentucket’s inclusion program and should continue there. Any failure to achieve his potential was attributed to his failure to consistently complete homework assignments, which the district asserted was not its fault. Evaluations of the student indicated that he had strong intellectual abilities, high average to superior verbal skills and average to high average non-verbal cognitive skills, and solidly average working memory. His weaknesses included low average processing speed and learning disabilities in math and written expression, as well as executive function deficits which affected his ability to organize and produce written work in an efficient manner. The parties’ dispute over special education services for the student dated back to 2003. Pentucket repeatedly denied eligibility and both parties filed hearing requests between 2005 and 2007. The parties entered into a resolution agreement in January 2008 whereby the district found the student eligible for special education. The student’s sixth grade program required him, for the first time, to change classrooms and teachers for different subjects. This requirement, according to the mother, left him “shell shocked,” leaving the student immobilized and missing school due to headaches and stomachaches. The student entered middle school in seventh grade in fall 2009. The student’s MCAS scores and grades faltered. By the end of seventh grade, the student was receiving C’s and D’s. Both parties agreed that these were lower than expected given the student’s intellectual abilities. The student’s emotional state deteriorated, manifest in his loss of self-esteem and a sense of being overwhelmed. The hearing officer’s analysis of the need for placement at Landmark illustrates how hearing officers determine which opinions to credit. Most of student’s seventh grade teachers testified at hearing. They were specific and detailed about the student’s participation in their classrooms and his progress in certain areas. They did not deny certain deficits, such as organization, but testified credibly to the meaningful progress the student had made. The district attributed the student’s low grades to his inability to complete homework assignments consistently and carefully. Both parties agreed that this was due in significant part to the fact that student lived alternating weeks with his mother and father, and that the father did not push the student to do his homework. The student’s private neuropsychologist had several factors that buttressed the credibility of his opinion: he was highly qualified; had evaluated the student on three occasions over the course of three years; and testified at hearing. However, he had last evaluated the student in January-February 2009, twenty months prior to the hearing; he had not observed the student in his program; and he testified by phone and not in person. Lastly, and perhaps the fatal blow to the parent’s case for placement at Landmark, he did not, at the time of his last evaluation, recommend placement outside the public school setting. Although there may have been a serious need for placement at Landmark, the case for an outplacement was not advanced well at the hearing. We commend the hearing officer for not letting it go at that. She noted that, while the parent had not made the case for a Landmark placement, clearly something was lacking in the student’s current IEP. The fact that the school district could not control what went on in the student’s home to get homework done did not absolve the district of its obligation to do better by the student. The evidence was clear that the student’s academic performance and emotional well-being were deteriorating. Since the hearing did not illuminate a clear path to revising the IEP to improve the student’s performance, the hearing officer ordered that the district designate and fund an independent evaluation by “an appropriately-credentialed professional with expertise in analyzing, designing and implementing services for adolescents with profiles similar to Student.” The hearing officer also ordered that this expert focus the evaluation on the “’fit’ between the student and his program, and [address] both the gap between student’s ability and achievement and his apparent growing disengagement from the educational process.” The hearing officer ordered that this evaluation be done swiftly, and that the Team reconvene to review the evaluation and consider changes to the current IEP and, if necessary, to his placement. As noted in our discussion of Granby, supra, we believe that this is the appropriate way for a hearing officer to handle the situation where more evidence is needed to illuminate the needs of a student who is struggling in his or her current program.

Private School Student Entitled To Public Transportation In Order To Access Related Services

Weymouth Public Schools, BSEA # 11-2663, 17 MSER 20 (2011), concerned a four-year-old preschool student with substantial expressive language deficits, poor articulation, difficulties with memory and retrieval, and limited English proficiency. The student was attending a private preschool program paid for by her parents. The student received one hour per week of speech-language services from Weymouth pursuant to an IEP. The parents filed a hearing request asking the BSEA to order Weymouth to increase the amount of student’s speech-language services, and to provide student with transportation between her private preschool and the public elementary school where she received those services. The hearing officer first noted that under state law, M.G.L. c. 71B, a student can be found eligible for “related services” (e.g., speech-language, occupational and physical therapies, counseling) from the public school district in which the student resides, even though the student attends private school. Turning next to the issue of the adequacy of the speech-language services in student’s IEP, the hearing officer credited the testimony of student’s preschool teacher, the social worker at student’s preschool, an independent speech-language pathologist, and parents, all of whom testified that student’s speech and expressive language deficits had a substantial and negative impact on her ability to interact with others and to participate in her educational program. The hearing officer also credited the Weymouth speech-language pathologist’s impressions of student’s needs, but noted that the district’s expert agreed during the hearing that increasing student’s services would be “fine.” Given the strength of the parents’ evidence that student required additional services, and the lack of testimony from Weymouth experts strongly disputing parents’ position, the hearing officer found that the student’s speech-language therapy should be increased to two 45-minute sessions per week. The more intriguing part of the decision, however, is the hearing officer’s analysis of Weymouth’s obligation to provide student with transportation from her private preschool to the public elementary school in order to receive speech-language therapy. Weymouth argued that student was not entitled to receive transportation because student did not have a transportation-related disability and thus did not require transportation as a “related service.” The hearing officer disagreed with Weymouth, and provided much-needed guidance about when school districts have an obligation to provide transportation to parentally-placed private school students who receive special education or related services. Citing a decision from the Eleventh Circuit, the hearing officer rejected Weymouth’s position and found that “Student is entitled to transportation as a related service if transportation is necessary for her to benefit from her speech-language services.” The basis for the hearing officer’s decision was a federal regulation that states: “If necessary for the child to benefit from or participate in the services provided under this part [governing special education provided by public schools to students enrolled in private schools at private expense], a parentally-placed private school child with a disability must be provided transportation¼[f]rom the service site to the private school, or the child’s home, depending on the timing of the services.” 34 CFR § 300.139 (b)(1)(i)(B). The hearing officer emphasized that the regulation requires the transportation to be “necessary” to allow a student to access and benefit from the special education services. In this case, while the distance between the private preschool and the elementary school was quite small, the hearing officer found that a four year-old student could not be expected to walk independently between both schools, and therefore, Weymouth was required to provide transportation. If the student had been older and could safely walk this distance independently, arguably the outcome of the hearing officer’s decision would have been different. For parents and advocates, this well-reasoned decision provides important clarity about the responsibility of school districts to provide transportation to parentally-placed private school students who receive services through an IEP, and reiterates that transportation may be required for such students even if a student does not have a “transportation-related” disability.

Semantics Don’t Allow A School District To Evade Its Responsibility To Fund An Independent Evaluation

Framingham Public Schools, BSEA # 11-1276, 17 MSER 28 (2011), did not involve any factual disputes and was decided as a matter of law on the district’s motion for summary judgment. The student in this case presented with difficulties in handwriting and articulation. In February 2009, parent requested that Framingham conduct an “updated OT screening” because student “really struggles with his handwriting.” The parent contacted Framingham again the following month and asked the district to conduct a formal occupational therapy evaluation. In response to parent’s request, Framingham conducted what it referred to as an “OT screening” in May 2010, which consisted of an observation of student engaging in various paper/pencil tasks and using scissors. On the basis of this screening, Framingham’s evaluator concluded that the student was not eligible for OT services. Framingham subsequently proposed an IEP that did not include OT services. Parent disagreed with Framingham’s conclusion that the student did not require OT, and asked the district to fund an Independent Education Evaluation (“IEE”) in the area of occupational therapy. Parent’s request comported with her right under state law to seek an IEE at district expense because she disagreed with the results of a Framingham evaluation that had been conducted within the past sixteen months. See M.G.L.c. 71B, § 3; 603 CMR 28.04(5)(c)(6). When a parent requests an IEE under these circumstances, a school district has only two choices—(1) proceed to the BSEA within five school days of receiving parent’s request and show that that its evaluations were sufficiently comprehensive and appropriate; or (2) agree to parent’s request for public funding. See603 CMR 28.04(5)(d). [1] In this case, Framingham denied parent’s request for an IEE, arguing that the district had not in fact conducted a formal OT “evaluation” in the past 16 months, because “an occupational therapy screening is not an evaluation.” After some back and forth with the district, parent ultimately obtained an independent OT evaluation, and then submitted the report and invoice to Framingham for reimbursement. Framingham refused to reimburse parent for the evaluation, but did not proceed to the BSEA. The hearing officer was not persuaded by Framingham’s semantics-based argument that its OT “screening” was not an “evaluation” and therefore could not trigger parent’s right to seek an IEE. The hearing officer noted that, “regardless of the terminology used,” Framingham’s evaluator had observed and tested student, had used her professional judgment to evaluate student, and the district had used this screening to conclude that the student did not need OT services. Because Framingham relied on the screening to make substantive decisions about student’s IEP, the hearing officer found that the screening constituted an evaluation for the purposes of parent’s right to request an IEE. Noting that Framingham also failed to proceed to the BSEA within five school days of receiving parent’s request for an IEE, the hearing officer denied the district’s motion for summary judgment.

Parents Required To Exhaust Their “Child Find” And Section 504 Claims At The BSEA Before Pursuing Monetary Damages And Other Relief In Federal Court

CBDE Public Schools, BSEA #10-6854, 17 MSER 43 (2011), involves disturbing allegations of misconduct by a school employee and explores the jurisdiction and authority of the BSEA to consider claims that seek monetary damages, rather than educationally-based relief. During the 2008-2009 school year an employee of the CBDE school district (the district was assigned a pseudonym by the hearing officer to protect the student’s privacy) allegedly raped student when she was 14 years old. Student began having emotional and behavioral outbursts at school. Neither student’s parents nor CBDE were aware of the cause of student’s distress for several months. Parents alleged in their hearing request that they asked CBDE to provide student with additional services when student began to decline emotionally, and that CBDE did not initiate an evaluation or provide special education services in accordance with its “Child Find” obligations. When CBDE received actual notice of the alleged rape in March 2009, it notified the police and suspended the accused CBDE employee (who subsequently pled guilty to criminal charges stemming from the incident). Due to publicity around the incident, and the small number of possible victims, persons within the CBDE community were eventually able to identify student as the victim of the CBDE’s alleged misconduct. Unfortunately, some students within the CBDE community taunted and criticized the victim, and blamed her for the employee’s arrest. Student’s emotional stability deteriorated. Nonetheless, CBDE did not initiate an evaluation or offer student support or services. In January 2010, student had a mental breakdown, was hospitalized, and was diagnosed with post-traumatic stress disorder and a mood disorder. CBDE proposed an initial evaluation to determine student’s eligibility for special education in late March 2010. Parents argued in their hearing request that, had CBDE conducted a timely evaluation, student would have revealed the alleged sexual misconduct earlier, would have received appropriate services, and would have avoided the emotional breakdown and hospitalization she experienced. Parents also brought various state and federal tort, negligence and constitutionally-based claims. They asked the BSEA to order CBDE to provide student with a residential placement and sought monetary damages. After the parents their filed their hearing request, CBDE agreed to place student in a residential therapeutic program, effectively resolving the parents’ prospective educationally-based claims. However, claims involving CBDE’s violations of Section 504 and the Child Find provisions of the IDEA, as well as the tort, negligence and constitutional claims, remained. CBDE moved to dismiss all of these claims, arguing that dismissal was proper because all of the student’s educationally-based claims had been resolved. Although the hearing officer ultimately agreed with CBDE that most of the parents’ educationally-based claims had been resolved, he found that parent’s claims alleging violations of Child Find remained. He explained that: Once a parent requests (or indicates a need for) special education services, even if the parent’s request or indication is inartfully stated, or once the school district has sufficient information regarding a student’s need for special education services, even if the student is only “suspected” of having a disability that may require services, the school district may then have a responsibility to evaluate the student because the school district has a general responsibility under child find to identify and evaluate all potentially-eligible students who reside within that school district’s jurisdiction. (Emphasis in the original). The hearing officer also found that parents sufficiently alleged that CBDE violated Section 504 by displaying “deliberate indifference” to student and her needs and, by its inaction, denying the student meaningful access to her educational program. Given the Child Find and Section 504 claims that remained—and the requirement that parents exhaust all educationally-based claims at the BSEA before proceeding to federal court—the hearing officer concluded he should compile a limited factual record for the purpose of assisting the court. The hearing officer further found that, while he could decide whether CBDE violated Section 504 and its Child Find obligations, he did not have the authority to make decisions of law pertaining to the other claims. It is quite worrisome that CBDE received a direct request from student’s parents to conduct an evaluation and apparently knew student was deteriorating—and yet declined to even evaluate student for well over a year. The very purpose of the Child Find obligation is to ensure that the opposite occurs. School districts are required to take reasonable steps to evaluate any student residing in the district who has, or is suspected of having, a disability. See 20 U.S.C. § 1412 (a)(3); M.G.L. c. 71B § 3; 603 CMR 28.10(1)-(2). School districts would be well-served to avoid repeating CBDE’s mistakes and take a proactive approach to identifying and evaluating students in need. The hearing officer has not had the opportunity yet to fact find or make limited determinations in this case because CBDE filed a complaint in federal court in May 2011, appealing this decision.

Parents’ Acceptance Of IEP Defeats Successful Claim

Natick Public Schools, BSEA # 11-3131, 17 MSER 55 (2011), presents a variety of issues, including whether Natick offered student a placement in the least restrictive environment (“LRE”) and whether parents’ acceptance of portions of the IEP that they later disputed precluded their argument that the IEP was inappropriate. Student was described as highly social, hard-working young woman with significant cognitive limitations and auditory deficits. Natick proposed that the student receive all of her academic courses in a substantially separate program for fifth grade, and be “mainstreamed” with typically developing students for electives, health class, gym, and lunch. According to Natick and a private evaluator jointly paid for by Natick and parents, student’s needs were so considerable that she was not able to make effective progress in any general education academic classrooms. Parents did not agree with Natick or the evaluator that student required all of her academic instruction in a substantially separate classroom. The parents felt that the LRE would involve student receiving science and social studies in a general education classroom with support. Parents ultimately accepted the services proposed by Natick for fifth grade, but rejected the proposed placement in a substantially separate program. During the course of student’s fifth grade year the Team reconvened at various times. Natick offered student three additional but substantially similar IEPs—all of which continued to propose placement in the substantially separate classroom. Parents continued to accept the services in the proposed IEPs but to reject the proposed placement. What is interesting about this case is the hearing officer’s conclusion that, even though the parents had rejected student’s placement in the substantially separate program, they had not preserved their right to contest student’s lack of inclusion for academic courses. The hearing officer explained that, with few exceptions, parental acceptance of an IEP serves to bar a parent from later claiming that the IEP was inappropriate. In this case, according to the hearing officer, because Natick’s substantially separate program offered various amounts of inclusion depending on each student’s needs, the placement itself did not indicate a specific level of inclusion. Rather than rejecting the placement, parents would have needed to reject that portion of each IEP that proposed the student would receive science and social studies instruction in the substantially separate classroom. The hearing officer also ruled against the parents because they failed to demonstrate that the IEPs Natick proposed for fifth grade were unreasonable, based on the information available to the Team at the time each program was proposed. While parents do need to be careful to reject any portions of an IEP they determine to be inappropriate (both in terms of services and placement), in this case Natick was fully aware that parents had rejected the placement was because of the lack of inclusion. If the purpose of a rejection is to put the district on notice of a parent’s disagreement with all or part of an educational plan, was not that accomplished by the parents in this case? They told the Team at least four times that they did not agree with Natick’s decision to keep student in a substantially separate program, and there did not seem to be a dispute that Natick was aware of the reasons for the disagreement. This case serves as a warning, however, that when parents disagree with portions of a proposed program, they should use the “accept in part, reject in part” option when responding to the IEP. Accepting the IEP and rejecting the placement is not the same thing and, as in this case, may not preserve their rights.

Two Denials Of Joinder

The BSEA considered two motions for joinder during this quarter. Both were denied. In Justice Resource Center, BSEA #11-0520, 17 MSER 32 (2011), the hearing officer denied the parent’s motion to join the Office of the Commissioner of Probation (“OCP”) because the hearing officer concluded that the BSEA lacked jurisdiction over that entity. InLittleton Public Schools, BSEA #11-3309, 17 MSER 26 (2011), the hearing officer denied without prejudice the motions of two districts to join the Department of Children and Families (“DCF”), finding the motions premature. Justice Resource Center concerned a student and parent who, as a result of a Juvenile Court order, signed an Order of Probation Conditions that required the student to attend a day program at the Justice Resource Center (“JRC”) in New Bedford. The student’s probation officer also signed and accepted the order. The JRC is a program for juvenile offenders, operated by the Administrative Office of the Massachusetts Trial Court through its Office of Community Corrections (“OCC”). Although the student and his mother lived in Taunton, the student (for reasons not explained in the ruling) was required to register in the New Bedford Public Schools (“NBPS”). Educational classes formed one component of the JRC program. Classes were taught by NBPS teachers, in buildings leased from the City of New Bedford. Beyond that, the extent of NBPS’ responsibility toward the student was disputed. The parent filed her hearing request against NBPS, Taunton, and DESE, asserting that the student had failed to receive FAPE during a three-month period when he attended JRC and that he was entitled to compensatory education as a result. She then sought to join OCP. NBPS supported the parent’s joinder motion, while Taunton and DESE took no position on it. The hearing officer concluded, pursuant to 603 CMR 28.08(3), [2] that the BSEA lacks jurisdiction over OCP. Under 603 CMR 28.08(3), a BSEA hearing officer may determine “that services shall be provided by [DCF, DDS, DMH, DPH], or any other state agency or program, in addition to the IEP services to be provided by the school district” (emphasis added). After citing the rather unhelpful definition in 603 CMR 28.02(19)(“State agency shall mean a Massachusetts state agency”), the hearing officer went on to consider the state statutory scheme of which OCC and OCP are part, set forth in M.G.L. c. 211 through c. 211F. The hearing officer observed that, under that scheme, the OCC, OCP, and JRC all fall within the judicial branch of state government. He noted that BSEA decisions are subject to review by the state Superior Court. He concluded that “the BSEA’s administrative jurisdiction over other state agencies does not extend to the Massachusetts court system,” and that joinder pursuant to BSEA Rule I(J) would therefore be improper. 17 MSER at 34. In support of his conclusion, the hearing officer cited an IDEA disciplinary provision and corresponding regulation, 20 U.S.C. §1415(k)(6)(A) and 34 C.F.R.§300.535(a). Each of these provides that nothing in IDEA Part B shall be construed to prevent state law enforcement or judicial agencies from exercising their responsibilities when a special education student commits a crime. The hearing officer could also have cited the general responsibility to provide FAPE, pursuant to 20 U.S.C. §1412(a)(1) and M.G.L. c. 71B, §3, and the provisions regarding school district responsibility in 603 CMR 28.10. Presumably, if the parent in JRC can prove that her son was deprived of FAPE, she will have a complete remedy against NBPS, Taunton, or both. In this quarter’s other joinder case, Littleton, the student’s parents, who resided within the Lincoln-Sudbury Regional School District (“LSRSD”), had voluntarily placed their son into DCF custody. DCF placed the student in a group home in Littleton. The parents filed a hearing request against Littleton, seeking to compel that district to provide a residential placement for the student. Littleton then moved to join LSRSD and DCF. LSRSD did not oppose the motion for joinder, but filed its own motion seeking joinder of DCF. DCF opposed both districts’ motions. Although it does not appear that the parents formally opposed the motions to join DCF, they took the position that complete relief could be ordered through a BSEA hearing against the two school districts, without DCF’s participation. After reviewing the standards for joinder under M.G.L. c. 71B, §3, 603 CMR 28.08(3), and BSEA Rule I(J), the hearing officer concluded that the districts’ motions to join DCF were premature. He pointed out that several important facts were not yet clear at the time of the motion hearing, including “whether DCF will continue to provide residential services and if so, for how long,” and whether DCF would continue to be involved with the student after his eighteenth birthday, which would occur in July 2011. 17 MSER at 27. Further, the hearing officer identified an unresolved legal issue, which he said would need to be briefed and argued before he could reach the merits of the motions: “whether the BSEA would have the authority to order DCF to provide residential services to Student if he is receiving only voluntary services from DCF.” Id. The hearing officer noted that joinder of DCF would place a burden on the hearing process, as scheduling would become more complicated and the time needed for examination and cross-examination of additional witnesses would make the hearing longer. He found that the circumstances, in the case’s current posture, did not justify the imposition of this burden. “[F]or joinder to be justified, it is not sufficient that DCF may possibly be involved in the future and could possibly be ordered to provide needed services,” he stated. 17 MSER at 27. Thus, the hearing officer denied both motions to join DCF without prejudice. He stated that motions for joinder could be renewed “in the event that DCF’s future involvement and responsibility become clearer, . . . [or] the BSEA determines that residential services are not the responsibility of a school district, or because of other relevant change in circumstances relevant to the need for DCF to be ordered to provide services so that Student would be able to access or benefit from his special education services.” 17 MSER at 28. Taken together, JRC and Littleton demonstrate that it is important for a party considering a joinder motion to perform a careful analysis. The party should determine, first, whether the entity to be joined is one over which the BSEA has jurisdiction (JRC). If so, the party should go on to consider whether the time is ripe to bring the motion, or whether the motion must instead await further development of the case’s factual and legal issues (Littleton).

Hearing Officer Considers Various Motions, Issues Warning To Parent Based On Advocate’s Conduct

The parent in Taunton Public Schools, BSEA #10-8142, 17 MSER 51 (2011), was represented by a lay advocate. The ruling, which considers three motions by the parent and one by the district, stands not only as a warning to the parent in that case but as a caution to parents in general regarding the need to choose their representatives with care. The procedural history, as recounted by the hearing officer in Taunton, involved nearly six months of pre-hearing proceedings, culminating in a rescheduled hearing date of January 6, 2011. On that date, the parent and advocate appeared but declined to go forward with the hearing. The district moved to dismiss. The hearing officer outlined the three options available to the parent at that point: proceeding to hearing; dismissal with prejudice; or agreement to submit the issues on documents alone pursuant to BSEA Rule XII. The parent and district agreed in writing to the last option. Four days later, the parent filed motions to rescind her agreement to decision on the documents, for change of venue, and for recusal of the hearing officer. The district opposed all of the parent’s motions, and renewed and supplemented a previous motion to dismiss. The hearing officer granted the motion for rescission. She denied the motions for change of venue, recusal, and dismissal. The hearing officer found that the motion to rescind the parent’s agreement to decision on the documents should be granted for three reasons. First, she stated, “the BSEA Rule XII procedure is always voluntary.” 17 MSER at 52; thus presumably a party can always withdraw its assent thereto. Second, the hearing officer pointed out that “no significant period of time elapsed” between the parent’s agreement to proceed on the documents and her filing of the motion for rescission. Id. Third, the hearing officer determined that “the procedural consequences to the School and to the Parent of rescinding the agreement are substantially equivalent,” meaning that neither party would be unduly prejudiced. The hearing officer did note that the parent’s initial agreement to the Rule XII procedure, followed by the motion to rescind, might appear to be an end run around the choices presented to her on the hearing date, constituting “an attempt to achieve the objective she originally sought, i.e., a postponement of the January 6, 2011 hearing, rather than a genuine change of heart.” Id. Finding that “the Parent is without competent legal representation,” however, the hearing officer declined to draw that inference, and granted the motion to rescind the agreement. Id. In her motion for change of venue, the parent sought to have the hearing held at the offices of the Division of Administrative Law Appeals (“DALA”), presumably meaning DALA’s main office in Boston. The hearing was scheduled to be held at Taunton High School, in order to address the parent’s concerns about access to her son’s records. The parent argued, however, that her physical safety could not be assured either at Taunton High School or at the BSEA offices in Malden. The hearing officer denied the motion and ordered the hearing to proceed at the BSEA in Malden. The hearing officer stated a number of reasons for her ruling. First, she explained that, although the BSEA is now a component of DALA, the BSEA has no authority to require DALA to make any of its facilities available for BSEA hearings. Second, she found that the BSEA’s Malden location has sufficient security to address the parent’s safety concerns. Third, she pointed out that the BSEA hearing rooms are separate from the administrative offices, thus negating the “creeping bias” that the parent had apparently alleged due to proximity of the hearing rooms to the offices. Fourth, the hearing officer noted that the parent had declined to view her son’s records, meaning that the main reason for scheduling the hearing in Taunton had disappeared. Lastly, the hearing officer concluded that the Malden location was reasonably convenient for the parties, witnesses, and hearing officer. The hearing officer then turned to the parent’s motion for recusal, which had two components. The parent asserted, first that she could not receive a fair hearing from any BSEA hearing officer, and that the case should be transferred to a DALA magistrate; and second, that the assigned hearing officer was not impartial and should therefore recuse herself. The hearing officer rejected both arguments. With regard to the first, she pointed out that transfer to a DALA magistrate was not possible, as the BSEA has exclusive jurisdiction over special education disputes. [3] With regard to the second prong of the parent’s motion, the hearing officer outlined and then applied the factors relevant to a motion to recusal. Her professional qualifications were not challenged. She found that the types of objective factors that ordinarily warrant recusal, such as financial interest, personal or professional connection with a hearing participant, or residence within the school district, were absent. She also found that there were no subjective factors, such as impermissible bias or prejudgment, that would affect her ability to decide the case fairly. Lastly, the hearing officer found that there were no factors that would create an appearance of partiality or bias. She emphasized that such factors, in order to be disqualifying, “must arise from some extrajudicial source,” and not from a litigant’s dissatisfaction with rulings made either in the current proceeding or in a prior one. 17 MSER at 53. Finding that the parent’s motion rested solely on this type of dissatisfaction (both with the procedural course of the case to date and with a different hearing officer in a previous matter), the hearing officer concluded that recusal was not warranted. The hearing officer went on to consider whether the case should be reassigned to a different hearing officer. She found that “the real potential for procedural and substantive harm to the School’s defense, along with the substantial risk of disruption to the administrative processes at the BSEA, that a late stage reassignment is likely to produce, significantly outweigh the discomfort that the Parent may experience in continuing with the current hearing officer.” 17 MSER at 53-54. The hearing officer therefore declined to refer the case for reassignment. Lastly, the hearing officer considered the district’s motion to dismiss the case with prejudice. The hearing officer summarized the questionable conduct in which the parent had engaged throughout the proceedings, which included: failing to proceed promptly with prosecution of the case; failure to adhere to deadlines; failure to adhere to BSEA rules; failure to comply with direct procedural and substantive orders of the hearing officer; and “repeatedly submitt[ing] false, misleading, and potentially defamatory documents in contravention of hearing officer warnings and directions.” 17 MSER at 54. The hearing officer stated that these actions had “had a substantial detrimental [e]ffect on the School, the School’s attorney and the BSEA.” Id. Typically, the hearing officer explained, such actions would justify dismissal. “Here, however,” she stated, “I cannot construe the procedural and other improprieties against the Parent, as the offending actions were those of her lay advocate.” 17 MSER at 54. The hearing officer viewed as relevant the fact that the parent would not have any means of relief against the advocate if the case were dismissed due to the advocate’s conduct. The hearing officer pointed out that, if the offending actions had been those of a lawyer, the parent would have had several possible avenues for redress. In contrast, “[t]here is no such relief available to the Parent who follows the sometimes inaccurate ‘legal advice,’ the inartful prosecution practices, or simply the poor judgment of a lay advocate.” Id. The hearing officer appeared reluctant to leave the parent with no claim remaining at the BSEA and no means of redress against the advocate whose conduct would have caused the dismissal. The hearing officer went on to observe that, although she had “taken extraordinary procedural steps and given significant directions and latitude to the parents and advocate,” she had not “explicitly notified the Parent of the serious consequences of continued failure to adhere to BSEA rules and to customary standards of courtesy and decorum in quasi-judicial proceedings.” 17 MSER at 54. Absent such a warning, the hearing officer found, the parent’s claims should not be dismissed. She proceeded to issue a warning to the parent in the plainest terms, indicating that from that point forward the BSEA Rules and expectations of courteous conduct would be strictly enforced and that failure to comply would lead to dismissal with prejudice. We think that the parent was lucky to escape dismissal with prejudice at this juncture. All persons who practice before the BSEA, whether attorneys, lay advocates, or pro separties, are expected to be familiar with the BSEA Rules and to comply with them, as well as to comply with hearing officers’ orders. BSEA Rule XVII(B)(3) allows dismissal for conduct of the type depicted in the hearing officer’s ruling, and does not explicitly require prior warning. Although parties who proceed without legal representation are granted a certain amount of latitude, another hearing officer might not give a parent and advocate the number of warnings and second chances that this hearing officer did. Moreover, even if parents succeed in avoiding dismissal in this type of situation, they may find themselves open to claims by a district for reimbursement of its attorneys’ fees, pursuant to 20 U.S.C. §1415(i)(3)(B)(i)(III). It behooves parents to choose their representatives carefully, and monitor their representatives’ conduct during the course of BSEA proceedings, or the parents may find themselves without a claim to pursue.

Commentary on Massachusetts Special Education Decisions: 4th Quarter, 2010, by Lawrence Kotin

December 03, 2010

This quarterly Commentary reviews thirteen decisions by the Bureau of Special Education Appeals (BSEA). As usual, these decisions span a wide range of issues. Four are of particular interest because they offer guidance on issues which are commonly in dispute between parents and school districts. Two others involve the still unsettled issue of the jurisdiction of the BSEA to interpret and enforce the terms of settlement agreements reached privately or through the use of a BSEA mediator. Two are decisions against pro se parents who were forced into the appeals process by school districts who initiated hearing requests. The remaining five involve a variety of issues which do not lend themselves to easy categorization.

District’s Finding Of Ineligibility Reversed

In Re: Uxbridge Public Schools, 16 MSER 388 (2010) (Crane), concerned a six year old first grader in an inclusion classroom. The student was described as friendly, outgoing, and energetic with cognitive ability in the average to high average range. He also was described as having good academic skills and expressive and receptive communication skills in the average range, with some specific areas of weakness, including difficulty following complex directions and answering open-ended questions. He also demonstrated weaknesses in narrative production, word retrieval, language pragmatics and social skills, but the extent of these weaknesses was in dispute. He was diagnosed with PDD (NOS) and had received early intervention services. Uxbridge evaluated him in the fall of 2007 (following his third birthday), finding him to be eligible to receive special education and related services. The IEP had a single goal for social development with three objectives and provided for his participation in a social skills group. Beginning in the fall of 2008, Uxbridge began observing the student to determine the extent to which he was meeting the three objectives in the IEP. In the spring of 2009, Uxbridge also conducted a series of assessments and hired a consultant to complete a social skills assessment for the specific purpose of determining the extent to which the student had achieved the three objectives in the IEP. The Team convened on April 28, 2009 and determined, on the basis of the reports of the observations and assessments, that the student had achieved the three objectives and, therefore, was no longer eligible to receive special education and related services. By letter of May 13, 2009 to the parents, the Team discontinued his services, effective after the end of the school year. During the summer, the parents rejected the finding of ineligibility and filed a hearing request and a motion for stay put. Pursuant to a ruling of the hearing officer on September 1, 2009 allowing the parents’ motion for stay put, some (but not all) of the student’s special education services were reinstated. One service that was not reinstated was the student’s participation in a social skills group. The parents’ case at the hearing consisted of the testimony of an independent neuropsychologist and a speech and language pathologist, both from the Integrated Center for Child Development ICCD), and the testimony of the student’s parents, both of whom were special education teachers. Both of the independent evaluators had evaluated the student subsequent to the finding of ineligibility. The neuropsychologist had also conducted a classroom observation of the student in his program, prior to the discontinuation of the student’s special education services. The district’s case consisted of the testimony of the teachers and other services providers who had worked with the student as well as the testimony of the district’s consultant who had completed the social assessment. The hearing officer began his analysis by articulating the two part test for determining eligibility: 1) whether the student had one or more of the requisite disabilities; and, if so, 2) whether, because of such disability, he required special education or related services in order to make effective progress. Regarding the first part, the hearing officer considered two potential disabilities, each of which was supported by the evidence- “autism” and “developmental delay.” While the hearing officer acknowledged that the student had already been diagnosed with PDD, NOS, which was within the autism spectrum, he concluded that the Massachusetts regulatory definition of “developmental disability” appeared to fit the student’s profile “more easily” than the definition of “autism.” The hearing officer then articulated the federal and state standards defining the second part of the eligibility determination. Regarding the federal standard, he noted that of particular importance was that the student’s program had to address his “unique needs.” Regarding the state standard, the hearing officer stressed the fact that the program had to be designed to enable the student “to make documented growth in the acquisition of knowledge and skills, including social/emotional development, within the general education program, with or without accommodations, according to chronological age and developmental expectations, the individual educational potential of the student, and the learning standards set forth in the Massachusetts Curriculum Frameworks and the curriculum of the district . . .” Combining the federal and state mandates, the hearing officer concluded that the parents and their independent experts “provided detailed and comprehensive evidence, supported by standardized testing, clinical observation, and observations by the parents, that student has substantial deficits with respect to social and pragmatic language (including non-verbal language).” On the other hand, the hearing officer found that “the testimony and evaluation report of [the district’s] one witness with expertise in the area of communication generally and language in particular” were “limited in probative value” because she did not test the student in the area of language pragmatics and her testimony was “general in nature, with little, if any, detailed or focused testimony responding to the particular concerns expressed by [the ICCD evaluators] relative to student’s social and language pragmatic deficits.” Similarly, the hearing officer found that while the district’s consultant and the lead teacher both found that the student “generally met each of the three [social] objectives,” this finding did not rebut or diminish the concerns raised by the parents’ independent experts. Similarly, the hearing officer concluded that the testimony of the student’s former and current teachers that he was making good progress academically and socially “did not persuasively rebut the testimony and reports of [the ICCD experts], together with the credible observations of the parents.” The hearing officer then addressed the issue of the services to be provided to the student. First, he found that the evidence was persuasive that the student needed to participate in a social skills group. He then found the district’s witnesses to be persuasive that only speech and language and occupational therapy consultation were required rather than the direct speech and language and occupational therapy services sought by the parents. In this regard, the parents had also requested compensatory services because of the discontinuation by the district of certain services despite the stay put order of the hearing officer. Here, the hearing officer noted that while his stay put order was clear, an ambiguity had been created as the result of an Advisory issued by the DESE which stated incorrectly that a hearing request by the parents was necessary to trigger their stay put rights and that the mere rejection of an IEP was not sufficient.2 For this reason and because of his determination that the direct speech and language and occupational therapy services which the district failed to continue providing were not essential for the student, the hearing officer did not hold the district to the usual strict standard of compliance and ordered compensatory services only to remedy the discontinuation of the student’s participation in a social skills group. The hearing officer declined to adjudicate the final concern of the parents that they were charged an excessive amount per page for the copies of their son’s records because of his view that this was an issue of regular education governed by the regular education student records regulations and not of direct relevance to his decision. This decision provides an excellent analysis of the federal and state standards for determining a student’s eligibility for special education and related services and how those standards should be applied in a particular case. It also underlines the importance to the outcome of the case, of witnesses who are very highly qualified with respect to their knowledge of the subject matter at issue and who have had sufficient first-hand experience with the student so that they can apply that knowledge in a credible and persuasive manner to the hearing officer.

Parents Prevail In Securing Residential Placement Over District’s Day Program For Older Students

In In Re: Douglas Public Schools, 16 MSER 410(2010) (Crane), the same Hearing Officer as in the Uxbridge case, supra, considered the issue of whether a district could offer an appropriate day program for a nineteen-and-a-half year old student with a complex profile or whether the student required a residential program. The student was diagnosed with substantial cognitive delays (the most recent cognitive testing showed him to be in the bottom 0.1 percentile when compared to same age peers, although the evaluator indicated that these scores were lower than prior evaluations and might not be accurate). The student also had substantial language processing deficits, with extremely low auditory processing test scores. In addition, the student had a substantial attention deficit, frequently requiring monitoring by a teacher or staff person for the student to remain focused. The student also had a history of medical issues and had been diagnosed with a schizoaffective disorder that required treatment with anti- psychotic medications, although his mental health issues appeared to have stabilized over the past year or more. Moreover, the student had severely limited social skills, particularly with peers. As a result, he had never had a friend his age. During his four years in high school, the student was in the same substantially separate program with the same teacher. It was undisputed that the student’s social skills for purposes of communicating and interacting with his peers were largely undeveloped and had remained at essentially the same level during the four years. It was also undisputed that there was no appropriate peer group for the student. In this regard, the parents’ psychoeducational expert convinced the hearing officer that “[i]n order for the Student to develop skills necessary for living and working in the community, it is essential that he develop social skills, particularly pragmatic skills needed to communicate and interact appropriately and meaningfully with his peers; and further, that in order for Student to have the opportunity to develop these skills, it is imperative that he interact socially with and learn with a substantially larger group of peers than is available within the Douglas Public Schools.” The expert concluded her testimony by stating that “Douglas’s proposal of instruction with two peers in the classroom and participation in a possible social skills group with his peers (as envisioned by the proposed IEP) [w]as not sufficient.” The hearing officer concluded that only a residential program would enable the student to generalize skills learned in the classroom to the community at large and that such generalization of skills was critical to the student’s ability to function independently. The hearing officer then found that the Cardinal Cushing residential program requested by the parents was able to provide the instruction and supervision which the student required. Of critical importance to this decision was the testimony of the parents’ independent psychoeducational evaluator, whom the hearing officer found to be a very credible witness. Also, the parents had accepted every IEP offered for high school and the student had failed to make effective progress or regressed under those IEPs. In addition, the student was 19 ½ years old with a brief “window of opportunity” to gain the skills he needed in order to live as independently as possible in the community. Finally, the IEP did not include a transition plan, the omission of which was both a major procedural and substantive violation which greatly weakened the District’s case.

Parent Wins Two Years Retroactive And One Year’s Prospective Funding For The Student’s Placement In The Landmark School

In In Re: Belmont Public Schools, 16 MSER 431(2010) (Figueroa), the parent of a seventeen year old senior at the Landmark school sought retroactive and prospective funding for his placement which began in tenth grade. The student was of average cognitive ability and was diagnosed with a specific learning disability (Dyslexia) and ADHD. He also presented with deficits in visual-motor integration and fine motor skills. He had struggled academically since kindergarten. The independent experts who evaluated him had all recommended that he be provided a substantially separate language-based program. The district defended by arguing that the student did not require such a program and that he had made effective progress in the district’s standard inclusion program. After an extensive review of the evidence, the hearing officer ruled in favor of the parent, ordering retroactive reimbursement for the student’s time at Landmark and prospective placement at Landmark for the remainder of twelfth grade. As in theUxbridge and Douglas cases, supra, the hearing officer in this case found the parents’ experts to be highly persuasive because of their extensive qualifications, their knowledge of the subject matter about which they were testifying, and their familiarity with the student. On the other hand, the hearing officer found the testimony of the district’s witnesses to lack credibility and to be internally inconsistent. Particularly damaging to the district’s case was the testimony of the special education director that the district’s “one size fits all” inclusion program was appropriate for the student because it was “an excellent program,” regardless of the student’s need for a substantially separate language-based program which had consistently been recommended for him. Also damaging to the district’s case were the lack of qualifications of certain of its witnesses and the over-zealous defense of the district’s proposed program by other of its witnesses, which far exceeded their knowledge of the subject matter at issue, the student, and the Landmark School program.

Parent Wins Placement At Learning Skills Academy Over A Partial Inclusion Program

In Re: Westford Public Schools, 16 MSER 459 (2010) (Figueroa), was decided by the same hearing officer as in the Belmont case, supra. The student in this case was a thirteen year old seventh grader diagnosed with a Non-Verbal Learning Disorder, a Central Auditory Processing Disorder, and a seizure disorder, all of which adversely affected her reading comprehension, organization, math and social pragmatic skills. The district did not dispute these diagnoses but took the position that the student, who was of average intelligence, had made effective progress in her sixth grade inclusion program. The district based this opinion on progress reports, other teacher reports, report cards on which the student received grades of A and B, and her reported class participation. After an extensive review of the evidence, the hearing officer found the parents’ experts to be very persuasive and the districts’ witnesses to be far less credible. In particular, she found that the district’s witnesses lacked sufficient knowledge of the student to support their opinions and that they compromised their credibility by over-zealously defending the district’s proposed program at the expense of more truthful and accurate testimony. Ultimately, she found that the student had failed to make effective progress in the district’s programs and had no friends after years in those programs. The hearing officer ordered that the district fund the student’s placement at Learning Skills Academically, both retroactively and prospectively.

Two Cases Concerning The Jurisdiction Of The BSEA To Interpret And Enforce The Terms Of Settlement Agreements

In In Re: Masconomet Regional School District, 16 MSER 408 (2010) (Oliver), the student, who was a fourteen year old ninth grader, had been placed by the district at the Landmark School for grade 3 and then, pursuant to a settlement agreement, for grades 4, 5 and 6. During the summer after sixth grade, the parents entered into an agreement following a BSEA mediation, which provided for their son’s continued placement at the Landmark School for seventh and eighth grades. Pursuant to said agreement, the parents waived their right to “placement pending appeal,” (or “stay put”) at Landmark for ninth grade, and also agreed to placement in the district’s proposed program for ninth grade. At the end of the second settlement period, the parents rejected the proposed IEP and program for ninth grade and unilaterally placed their son at the Landmark School for ninth grade. They then filed a hearing request seeking an order requiring the district to fund this placement. The parents’ position was that the proposed IEP and program were inappropriate and that the district could not be relieved of its obligation to provide an appropriate IEP and program for their son. In other words, the parents argued that as a matter of public policy, the mediated agreement could not take precedence over their son’s entitlement to an appropriate IEP and program. The district’s position was that the mediated agreement was legally binding on both parties. The district pointed out that the agreement provided for the student’s placement at the Landmark School for two years in consideration for the parents’ waiver of placement pending appeal for ninth grade and their agreement to place their son in the district’s proposed program for that year. The district filed a motion to dismiss the parents’ hearing request on the grounds that, according to the terms of the mediated agreement, the parents waived their right to seek funding from the district for their unilateral placement at Landmark and agreed to place their son in the district’s proposed program for ninth grade. In granting the district’s motion to dismiss, the hearing officer noted that the mediation was presided over by “a trained, highly experienced mediator” and that the parents had been represented “by an experienced advocate” while the district had been unrepresented. He then quoted the disputed language from the agreement: “Parent agrees to waive [their son’s] stay put rights to a placement at Landmark at the end of the 2009-2010 SY; meaning that they agree to placement at a Masconomet program beginning with the 2010-2011 school year” (emphasis in original).3 The hearing officer went on to say that there was no dispute between the parties about the meaning of the language of the agreement and that the agreement reflected “a truequid pro quo”- the parents received the certainty of two years of funding for Landmark in exchange for the district having the certainty that, at the end of the two years, the student would be placed in the proposed district program (or the parents could continue their son’s placement at the Landmark School at their own expense). The hearing officer also concluded that both the federal and state special education laws encourage the resolution of disputes through agreements between the parties (e.g., the provisions for mediation and resolution meetings) and that the jurisdiction of the BSEA to interpret and enforce such agreements is included within the BSEA’s broad jurisdictional mandate in IDEA to hear disputes concerning the “identification, evaluation or educational placement of the child or the provision of a free and appropriate education to such child.” In In Re: Lincoln-Sudbury Public Schools and Rachel R., 16 MSER 424 (2010) (Berman), the hearing officer reached a different conclusion about the BSEA’s jurisdiction to interpret and enforce settlement agreements. The parents in this case requested a hearing seeking reimbursement for a history course provided by a home tutor. Among other arguments, the parents asserted that the district violated the terms of two settlement agreements reached through BSEA mediation and one private agreement, one or more of which provided for them to be reimbursed for the costs of the tutor and all three of which were attached to and incorporated into the student’s IEPs for the 2007- 2008, 2008-2009 and part of the 2009-2010 school years. The district filed a motion to dismiss on a number of grounds4 including, among others, that the BSEA lacked jurisdiction to enforce those agreements.

In granting the district’s motion, the hearing officer stated:

Nothing in the IDEA, the Massachusetts special education law or the regulations promulgated under those statutes grants a BSEA Hearing Officer the authority to enforce agreements. IDEA 2004 specifically added language specifying that mediated agreements were “enforceable in any State court of competent jurisdiction or in a district court of the United States.” 20 USC §1415 (e) (2) (F) (iii). The statutory language is clear that the BSEA lacks authority to enforce mediated agreements. Parents’ recourse is in a different forum. The hearing officer found that it made no difference that one of the settlement agreements included the statement that “the parties agree . . . that the BSEA will have authority to enforce the terms of this agreement . . . ” The hearing officer stated that “such language is insufficient to bind the BSEA where it otherwise lacks statutory authority, and enforcement of agreements is not one of the powers specifically granted to BSEA hearing officers.” Regarding the fact that the agreements contained a clause incorporating them into and attaching them to the students’ IEPs, the hearing officer qualified her ruling on the BSEA’s jurisdiction stating that: “The BSEA may only take jurisdiction over IEPs and over those portions of the agreement that are appropriate components of an IEP and have been incorporated by reference into the IEP.” While both decisions make cogent arguments about the jurisdiction of the BSEA to interpret and enforce settlement agreements, they arrive at opposite conclusions. It is this commentator’s view that whether a settlement agreement will be interpreted and enforced by the BSEA should not be a function of which hearing officer is assigned to the case. Instead, the BSEA should adopt a uniform policy on this issue. In this regard, this commentator finds the analysis in In Re: Masconomet Regional School District, supra, to be the more persuasive of the two because it avoids the time and cost involved in having to utilize a separate, non-specialized forum to enforce an agreement. Also, it furthers the policy in federal and state law of encouraging settlements by simplifying their enforcement in the few cases where that might be necessary.

Two Decisions Illustrate The Plight Of Pro Se Parents Forced Into The Appeal Process By Districts Who File Hearing Requests

In Re: Bridgewater-Raynham Regional School District, 16 MSER 372 (2010) (Putney-Yaceshyn), the hearing officer addressed the issue of the appropriateness of an IEP for a fifteen-year-old “school choice” student with a diagnosis of ADHD and a language-based learning disability. The student was described as having difficulty engaging independently in class, but wanting to do well and often vocalizing concern over his poor academic progress and grades. He was also described as having a severe expressive and receptive language disability and depressed processing speed. The hearing officer noted as one example of the student’s language disability that “[w]hen he had problems with peers, he was not able to state who the peers were or what the problem was.” The student was repeating his eighth grade year because of poor attendance. At the time of the hearing in late September of the second eighth grade year, he had been in school only a couple of days. The previous year, he had been absent 93 days and late 27 days, causing him to fail to be promoted. During the fall of his first eighth grade year, the student had been referred by his teachers for an evaluation because of their concerns about his inability to express himself and to function in the classroom. The student’s mother (who was a single parent) consented to the evaluation but it was difficult for the district to engage her in the process. The reason for this was unclear, except that she told one staff member “that she did not trust school personnel based upon her experiences in her son’s prior school district.” The student’s mother attended a Team meeting in January of the first eighth grade year at which time the Team proposed that her son attend the district’s “language-based program” rather than continuing to attend the inclusion program he was currently attending. The student ceased attending school at all in March of the first eighth grade year following an incident where the student “was in an auditorium when he was hit in the head by a shoe that was thrown by another student.” The student’s mother told the district staff the student had suffered a concussion. The mother was asked to bring the medical documentation of the concussion to a Team meeting. The mother came to the meeting without the documentation and, when she was observed at the beginning of the meeting to be placing a tape recorder in her purse, the district abruptly ended the meeting. Following this abbreviated meeting, the student’s mother did not respond to the proposed IEP for the remainder of the school year. She subsequently rejected the proposed IEP on September 11 of the second eighth grade year. When contacted by school staff about her rejection of the IEP, she stated that because the school in which the self-contained program was located was in Raynham and was further from her home than the program her son had been attending in Bridgewater, she was concerned she would lose her job because of the extra time involved in driving her son to school. Also, she had previously indicated that she was opposed to having her son leave the inclusion program for the self-contained program. When the student failed to return to school at all during the second eighth grade year, the district called the police and a CHINS was filed against the mother. The net result of all of these efforts was that the CHINS was not enforced and the student never returned to school. Since the student’s mother did not attend or otherwise participate in the hearing, the hearing officer had little choice but to find the district’s proposed IEP to be appropriate, despite the fact that it contained no provision to assure the student’s safety. In In Re: Springfield Public Schools and Malcolm, 16 MSER 385 (2010) (Byrne), the single pro se parent of a seventeen-year-old eleventh grade student with a history of regional complex pain syndrome and significant depression, refused to send her son to school and requested that he be placed instead “in a private special education school.” In ruling for the district’s program, the hearing officer found that the IEP (which had been accepted by the parent) was appropriate and fully implemented, despite the fact that the student had left school after April 13, 2010, and refuses to return and that the parent refused to participate in the hearing. Apparently in response to concerns which the parent had previously raised, the science teacher, who was also the Team liaison, testified that she had never observed or become aware of, any abuse, harassment, or bullying as she later learned had been alleged by the parent. She also never observed the student display any symptoms of anxiety, depression or physical/emotional exhaustion as had also been reported. Since the parent did not appear at the hearing, there was no opportunity for the hearing officer to hear any explanation of the parent’s apparent reference to the fact that her son had been harassed and bullied and, as a result, was suffering from anxiety, depression and physical/emotional exhaustion. In this regard, the hearing officer stated that “there was no evidence in this record contrary to or different from the recommendations of the evaluators and teachers, or the observations and expert conclusions of Malcolm’s teachers, counselor and the administrators responsible for developing and implementing Malcolm’s special education program.” Of concern to this commentator is that in both of these cases, there was a strong suggestion that the students had been bullied and otherwise mistreated causing them to suffer physical and emotional harm and causing their parents to refuse to allow them to continue to attend school (apparently the only recourse for these parents and others similarly situated who lack the resources and sophistication to use the appeals process to their advantage). As a result, the parents found themselves in the ironic position of being involuntary participants as defendants in an appeals process in which they might more appropriately have been plaintiffs if they had the means and sophistication to request a hearing on their sons’ behalf. Not surprisingly, in both cases, the parents refused to attend the hearings which they very likely viewed as just another manifestation of a system which could not educate their children or, at a minimum, guarantee their safety, and which then proceeded to blame the victims. Nevertheless, the hearings went forward without the presence of the parents to reach the predictable result in both cases. While the result in each case was correct from an evidentiary point of view since only one side presented unrebutted evidence, it is unfortunate that a mechanism does not exist for parents (like those in these two cases), who might well have legitimate grievances, to be able to have their concerns heard and responded to in a way which would enable their children to attend school safely and obviate the need for perfunctory and time-consuming hearings where the outcome is a foregone conclusion.

Miscellaneous Decisions

In In Re: Westwood Public Schools, 16 MSER 378 (2010) (Figueroa) [10/7/2009], the hearing officer refused to grant summary judgment in favor of the district where the parent was arguing for a higher rate than that allowed by the state so that she could hire a neuropsychologist with the appropriate expertise to be able to evaluate her son with Asperger’s Syndrome. In denying the district’s motion, the hearing officer ruled that since it was possible as a matter of law for the parent to prove that she could qualify for the “unique circumstances” exception to 603 CMR 28.04 (5) (a), summary judgment was inappropriate and a hearing was required. In In Re: Pentucket Regional School District, 16 MSER 423 (2010) (Berman), the hearing officer refused to hear the parents’ post-hearing motion for partial summary judgment where the hearing had been completed and the subject matter of the motion could have been addressed during the hearing or before the record of the hearing had been closed. In In Re: Chicopee Public Schools, 16 MSER 429 (2010) (Byrne), the hearing officer ruled in favor of a pro se parent who argued that door-to-door special transportation to a substantially separate academic and vocational program was required to continue for a fifteen-year-old tenth grade student who had been receiving such transportation for many years. The parent had rejected that part of the district’s proposed IEP which specified a change to regular transportation. The hearing officer agreed with the parents’ position that the district (which had the burden of proof as the party trying to change thestatus quo) had failed to produce an assessment or any other evidence that a change to regular transportation was appropriate. Also, in response to the district’s argument that regular transportation constituted the “least restrictive environment,” the hearing officer ruled that since transportation was a related service, the LRE requirement did not apply. In In Re: Northampton Public Schools and Khaled, 16 MSER 421 (2010) (Byrne), the parents had accepted an IEP providing for their nine-year-old son’s residential placement at the Perkins School for the Blind. The student began attending Perkins but the parents transported him to and from home on a daily basis because of their belief that he required a gradual transition starting as a day student for some period of time before he became a resident. The parents filed a Motion for an Interim Order requesting reimbursement for transportation while the student was a day student and for certain services to supplement the Perkins program. The hearing officer denied their request for transportation reimbursement and some of the requested services on the grounds that these were not part of the IEP which the parents signed and Perkins did not require them to be provided to be able to implement the IEP. The hearing officer ruled that some of the services requested should be the subject of a Team meeting since it was not clear if they should be provided. In In Re: Natick School District, 16 MSER 457 (2010) (Crane), the parents and district were engaged in a dispute over the appropriate program during the 2009-2010 school year for a thirteen-year- old sixth grade student “diagnosed with an intellectual disability that impacts her receptive and expressive language.” During the summer of 2009, the student was accepted by Christa McAuliffe Regional Charter Public Middle School (McAuliffe). The parents sought reimbursement from the district for certain expenses incurred during the 2008-2009 school year and for expenses associated with their daughter’s placement in McAuliffe during the 2009-2010 school year. These latter expenses included costs of private tutoring to supplement the McAuliffe program, speech and language services, transportation to and from McAuliffe and lost wages of the student’s father resulting from time spent by him researching traveling, consulting, etc. for the purpose of creating a program at McAuliffe because of the district’s inability to offer an appropriate program. The district filed a motion for partial dismissal of those claims of the parents relating to the 2009-2010 school year. In granting the motion, the hearing officer ruled that since McAuliffe is, in effect, a separate school district, Natick was not responsible for the student’s placement there. In so ruling, the hearing officer rejected the parents’ analogy comparing placement at McAuliffe to a unilateral placement in a private school for which the parents might have a claim, finding that since McAuliffe was a separate and independent school district, Natick was not responsible for any costs relating to the placement at McAuliffe.

Conclusion

This review illustrates the wide range of issues heard by the BSEA and the great care given to each one. These cases provide helpful guidance to participants in BSEA proceedings and valuable insight into the relationship between parents and school districts and the BSEA’s role in defining the nature and limits of that relationship.

Inclusion

November 01, 2010

By Daniel T.S. Heffernan

One of the off shoots of the Civil Rights Movement of the 1960’s was the push to ensure that children with disabilities be accorded full and meaningful educational opportunities. Massachusetts led the way with its groundbreaking special education law, known as “Chapter 766” and currently embodied in Massachusetts General Laws chapter 71B. On the federal level, The Individuals with Disabilities Education Act (IDEA), 29 U.S.C. §§ 1400-1487, originally enacted as the “Education for All Handicapped Children Act” in 1975 and reauthorized in 2004, is the cornerstone of federal law protecting the educational rights of children with disabilities. On the Civil Rights front, one of the most powerful arguments underpinning challenges to racial segregation in public schools was that the long held policy of “separate but equal” schooling, was, in fact, anything but equal. Similarly, the assumption that children with disabilities should be educated separate from their non-disabled peers was also challenged. IDEA guarantees every child with a disability the right to receive a “free and appropriate education” (FAPE) and to be educated in the “least restrictive environment” (LRE). The benefits of inclusion are myriad and include being accorded meaningful access to more challenging academic curricula, have role models among non-disabled peers, the availability of greater resources, and to better prepare students with and without disabilities to work and live together in their adult lives. LRE is the principle underpinning the rights of children to be included with their non-disabled peers and not be segregated or marginalized. LRE means that a child with a disability must be educated to the extent possible and appropriate in the least restrictive setting possible. The more separated from non-disabled peers, the more restrictive the setting is considered. FAPE does not obligate a school to provide the best possible program for the student or special education and related services that will maximize Student’s educational potential. FAPE obligates a school district to accord “meaningful access” to public education that allows a student to make meaningful and “effective progress” commensurate with his/her educational potential. The law surrounding LRE is clear. When a school district or parents seek placement of a student in a program that is, for any portion, segregated from non-disabled peers, the party seeking that more restrictive environment faces a heavy burden. That party must show that the student cannot receive FAPE and make effective progress in a less restrictive setting. However, there can be conflicting interests in educating children with Down syndrome with their typical peers versus instruction in segregated settings. There must be, however, a compelling case for that segregation. Will appropriate supports and modifications allow the student to make effective progress in the inclusion environment? Are there other benefits, such as socialization and peer models, that outweigh any additional benefit from segregating the student? Is some combination possible, where the inclusion is still meaningful? Sometimes a segregated environment is necessary to allow the student to make meaningful progress. Examples of this are most common in the transition years after high school, where students with Down syndrome sometimes attend residential programs that focus in an intensive way on independent living skills, employment, etc. Some districts simply “don’t do” Down syndrome. This may be a function of their inexperience with having students with Down syndrome in their mainstream programs at certain levels. It may also be a function of a district’s established practice of tracking students with Down syndrome into segregated programs or even sending them out of their home district to a collaborative program (where neighboring towns combine resources and students for certain special education programs) or private school. For parents dissatisfied with these options, there is recourse. As stated above, the law provides a strong presumption that an inclusive environment is the appropriate one and often parents can successfully challenge such segregation. Students previously included with typical students can reject an IEP offering a segregated program and have the student “stay put” in the inclusion program until the district and family agree otherwise or an order from a hearing officer is obtained. Support from independent educational experts that the student with Down syndrome can be well educated in the inclusive environment is key. To ensure that a family does not win the battle but lose the war in these disputes, it is important that inclusion be done well. Simply having a student with Down syndrome inserted into a regular education setting does not guarantee a beneficial experience for that student. Qualified independent educational experts, who observe the student and the program first hand, can help provide the “how to” for successful inclusion. For inclusion to work, it requires a well thought out plan of modifications and accommodations, as well as resources, possibly including an aide, supplemental tutoring, inclusion facilitator, and related services. With appropriate support, many previously reluctant educators welcome students with Down syndrome and the experience for the student with Down syndrome, the non-disabled peers, and educators, can be a deeply enriching one. Daniel T.S. Heffernan, Esq. is a partner at Kotin Crabtree and Strong, LLP in Boston, Massachusetts. He concentrates his practice in representing families in special education and civil rights matters. From 1995 to 2007, Dan served as president of the board of directors of The Federation For Children with Special Needs. His son, Brian, who is eighteen years old and has Down syndrome, currently attends Massachusetts Bay Community College through the Inclusive Concurrent Enrollment Program (ICE). In 2002 Dan and his wife, Julie, received the Dr. Allen C. Crocker Award of Excellence by the Massachusetts Down Syndrome Congress. He writes and lectures frequently on special education law and advocacy. Dan can be reached at dheffernan@kcslegal.com.

Commentary on Massachusetts Special Education Decisions: 3rd Quarter, 2010, by Joseph B. Green, Eileen M. Hagerty, Michelle A. Moor

July 03, 2010

Introduction

During the third quarter of 2010, the BSEA conducted seven hearings involving disputes over the appropriate placements for students. Parents lost every time. In another case, parents lost in an attempt to get a 1:1 aide for their child in an in-district program. Several of the themes that emerge from these cases are the ones we discuss in every Commentary: (1) key evaluators need to testify, at least by telephone, because submitting reports is not enough; and (2) in challenging a placement that the student has not yet tried, it is not enough to show that the student has not made progress in the previous programs provided by district; parents must also have experts observe the newly proposed program and explain why that program is not appropriate. Parents were represented by an attorney in only one of the placement cases. Lay advocates represented the parents in some of the cases. The remaining cases on which we comment fall into several categories. One concerned a manifestation determination (Westford). In two, the hearing officers granted substituted consent to the district’s re-evaluation proposals, allowing the districts to evaluate the students over the parents’ objections (Lincoln-Sudbury and Lowell). In two other cases, the BSEA considered issues relating to extended evaluations and home services, where the students had been out of school for considerable periods of time (Middleboro andLudlow). Students’ stay-put rights were at issue in two more cases (Uxbridge andConcord). In another case, the hearing officer considered the effect of IDEA’s statute of limitations and notice requirements on the parents’ claims for reimbursement for a unilateral placement (Danvers). The issue of BSEA jurisdiction over settlement agreements reappeared (Monson). Lastly, the hearing officer explained a district’s obligation to comply with a BSEA order requiring reimbursement, even if the hearing officer’s order is for reimbursement only, regardless of whether the district appeals to federal court (Sudbury).

Parents’ Key Experts Must Testify, Not Just Submit Reports, In Order For Parents To Prevail In Securing An Out Of District Placement

Medford Public Schools, BSEA #10-6403, 16 MSER 289 (2010) (Scannell) In this case Parents, represented by an advocate, sought a private placement at Landmark for their son’s eighth grade year (2010- 2011 school year). In sixth grade (2008-2009 school year), Parents had become concerned about Student’s academic progress and had him evaluated. The neuropsychological evaluation diagnosed Student with a language-based learning disability, executive functioning deficits, and attentional weaknesses. After Medford conducted its own evaluations, Student was found eligible for special education.   Medford offered Student an IEP that called for a full inclusion placement, Wilson reading support, speech-language support, and assisted study support. For the remainder of sixth grade, Medford staff regularly reported that Student was making measurable gains towards his IEP goals. During seventh grade (2009- 2010 school year), Student’s teachers and service providers continued to report that he was making progress toward his IEP goals. In January of Student’s seventh grade year, Parents had Student re-evaluated. Comparing Student’s scores from the 2008 evaluation revealed gains in some areas, but some of Student’s test scores had declined. There was a “significant drop” in Student’s reading comprehension skills and “limited” progress in written language skills. The neuropsychologist recommended that Student be placed in a substantially separate language-based classroom. Medford, however, maintained that the Student was making effective progress and proposed an IEP for eighth grade that offered Student a full inclusion placement with special education support in math, science, social studies, and English Language Arts. Parents rejected the proposed IEP, and requested that the BSEA order the district to place Student at Landmark. At the BSEA hearing, Parents testified that Student was struggling academically and emotionally, that he could not read for pleasure, and that they were concerned because their son was losing his desire to learn. Student’s therapist testified that Student felt frustrated with school. A learning specialist who worked with the second neuropsychologist testified that she agreed with the neuropsychologist’s findings and conclusion that Student required a more intensive language-based program. Neither the neuropsychologist who did the evaluation in 2008 nor the neuropsychologist from 2010 testified at the hearing, nor did the parents present testimony from any expert who had observed Student’s current or proposed program. Medford presented testimony from Student’s teachers and service providers that Student was making progress in many areas. The Hearing Officer found that the Parents failed to meet their burden of proving that the eighth grade IEP was inappropriate. She noted that, while Parents relied on the evaluations by the two independent neuropsychologists, neither was called as a witness. Thus, even though some of Student’s scores declined between 2008 and 2010, Parents needed expert testimony to explain these results and to refute the criticisms and explanations offered by Medford’s witnesses. The Hearing Officer also noted that the learning specialist’s testimony was not persuasive that Student required a Landmark placement because that witness had never directly evaluated Student, had not observed his program, and had not spoken with Medford’s staff about Student’s progress. As for the therapist’s testimony, the Hearing Officer credited the testimony, but noted that it did not bear directly on the question of whether Student required a different educational placement or whether Landmark would be appropriate. Parents simply did not offer adequate expert testimony or other evidence to prove that Student’s program in Medford was inappropriate. Comment: While the parents in Medford did present evidence from a therapist and an educational consultant, they failed to have an expert withdirect knowledge of the Student’s educational needs and programming testify on their behalf. Experts who have personally evaluated a child and have personally observed a program are far more credible than the testimony of an expert who has interpreted the reports of another evaluator and who has not observed the program.

Proving Lack Of Effective Progress In A Prior Year May Not Be Enough To Win An Out Of District Placement

Walpole Public Schools, BSEA # 10-5058, 16 MSER 277 (2010) (Oliver) The parents in this case requested the BSEA to order the district to place their daughter in the Language Enhancement Program at the South Shore Educational Collaborative (“SSEC”) for the eighth grade. The Parents, through their advocate, presented evidence during the hearing that Student had not made progress in Walpole’s program during sixth grade (the 2008-2009 school year). An independent neuropsychologist testified that Student’s academic skills had dropped significantly between fifth and sixth grades. By the end of sixth grade, Student’s word reading was at a 1.8 grade level, her math skills were at an early second grade level, and her written language skills were at a 2.5 grade level. When the Team convened to discuss the evaluation, Walpole proposed increasing Student’s math and English support for the remainder of sixth grade, and then transferring Student to a different middle school for seventh grade (2009-2010 school year) so that she could be placed in Walpole’s Language Inclusion Program (LIP). LIP is led by a certified special education teacher who had previously taught at the Carroll School for ten years and is certified in both the Orton-Gillingham and Project Read methodologies. Both aides in the LIP classroom had been trained by the lead teacher on how to deliver specialized language-based instruction. Student attended the LIP program during seventh grade. She received language-based instruction for math, reading, and language arts in small classes and was mainstreamed for social studies and science with the support of a dedicated aide. In addition, Student received 1:1 reading tutorials from a reading specialist trained in the Wilson Reading Program, daily occupational therapy, emotional support from the school adjustment counselor, and extended year programming, as well as medical support from the school nurse. During the fall of seventh grade, Walpole hired a clinical psychologist to observe Student on three separate occasions in order to better understand Student’s needs. The psychologist noticed during these observations that Student tended to gaze off and had diminished memory skills, even losing previously acquired skills. Based on the psychologist’s recommendations, Walpole advised the Parents to seek a neurological evaluation to determine if Student was suffering from any underlying medical conditions. As a result of Walpole’s recommendation, Parents brought Student to a pediatric epilepsy specialist at Massachusetts General Hospital, for an evaluation in December 2009. This physician concluded that Student was suffering from an underlying seizure disorder that caused abnormal brain activity, which in turn impacted Student’s ability to learn and maintain attention, as well as impacting her executive functioning, working memory, academic skills, and mood. Walpole then developed a seizure protocol for student and regularly convened the Team to discuss adjustments to Student’s program. Despite Walpole’s efforts to support Student, Parents believed that Student was not making progress in the district and that she required a placement in the language-based program offered at the SSEC. They filed a hearing request in the spring of 2010 seeking a SSEC placement for eighth grade (2010-2011 school year). The Hearing Officer concluded that Parents did not meet their burden of demonstrating that Walpole’s proposed IEP was not likely to be appropriate for the Student. In his decision, the Hearing Officer meticulously detailed the evidence presented during the hearing. He credited Walpole for acting “professionally, reasonably and proactively” during Student’s sixth and seventh grade years. In particular, the Hearing Officer praised Walpole for frequently convening the Team to discuss Student’s needs, securing services from an outside consultant, and frequently modifying and adding to Student’s IEP to address her changing needs. The Hearing Officer also commended the lead teacher of LIP for documenting her daily observations of Student, and for identifying Student’s memory loss and loss of acquired skills, which in turn led to Student’s seizure disorder diagnosis. The Hearing Officer also found that Walpole had appropriately provided Student medical support for her seizure disorder and emotional support as Student learned to cope with the effects of this condition. On the other hand, the Parents did not present evidence that Student had failed to make progress in the LIP program during seventh grade or that any variability in Student’s academic skills was the result of her educational programming rather than the unfortunate effect of her underlying seizure disorder. Accordingly, the Hearing Officer concluded that the parents had not proved that Walpole’s proposed IEP was inappropriate. Comment: Parents’ case for an out of district placement for eighth grade lacked some key fundamentals: parents had no expert testimony, no observation reports, and no current evaluations reflecting Student’s progress (or lack thereof) in the seventh grade program, and no testimony, based on observations of the program or the student’s profile, about why the proposed eighth grade program would not be appropriate to meet Student’s needs. Instead, Parents relied on evidence showing that Student had not made progress during sixth grade even though that IEP was not in dispute. As will be seen in the Pembroke decision discussed below, this approach is not sufficient to prove a district’s inability to provide an appropriate placement. Parents must present evidence regarding the program that is currently in dispute. Parents also failed to refute the school psychologist’s assertions that it was primarily the Student’s seizure activity that impacted her ability to make academic progress and that until Student’s seizure condition is under control, Student would continue to experience only variable gains in the classroom regardless of her academic programming. If anything, Parents’ own expert seemed to reinforce the school psychologist’s testimony and agreed that Student’s learning is and would be adversely impacted by her seizure disorder. The Hearing Officer sympathized with the family and noted that until the Student’s seizure disorder stabilized, her learning would be compromised. However, he concluded that “a change in educational placement is not going to alter that reality.”

Even Proving “Abysmal” Progress May Not Be Enough To Obtain A Private Placement

Pembroke Public Schools, BSEA # 10-1097, 16 MSER 281 (2010) (Berman) Perhaps there is no better decision than Pembroke to illustrate how difficult it can be for parents to prevail at the BSEA. The Hearing Officer found that the student’s progress in the district’s programs had been “abysmal,” but she still did not order a change in placement. In this case, the Parent filed a hearing request pro se, alleging that Pembroke’s IEP for sixth grade was not appropriate and seeking an out of district placement at the Beal Street Academy for her severely dyslexic son. There was no disagreement among the parties that Student presented with a significant language-based learning disability that impairs his receptive and expressive abilities, including understanding verbal information, reading, writing and spelling. Student had also been diagnosed with an auditory processing disorder. These disabilities have interfered with Student’s ability to make progress commensurate with his age and cognitive potential, despite considerable effort by Student to succeed at school. By fourth grade (2007-2008 school year), Parent and Pembroke were in agreement that Student had made only “minimal” progress in gaining basic literacy skills. After a neuropsychologist, selected by agreement between the district and the parents, performed an evaluation, the Team proposed an IEP for the remainder of fourth grade and most of fifth grade that offered several accommodations, two hours of inclusion support per week, and a substantial increase in speech-language services, reading support, written language and academic support, and extended year services. Parent accepted that IEP. In the fall of fifth grade (2008-2009 school year), Pembroke completed Student’s triennial re-evaluation. Student’s scores on many assessments again revealed substantial weaknesses in most language-based skills, and confirmed that Student was still reading at a first grade level. Pembroke proposed a new IEP that increased Student’s accommodations and offered a modified curriculum, as well as services similar to what Student had received in fourth grade. Parent rejected the IEP. During the summer before sixth grade (2009-2010 school year), the same neuropsychologist re-evaluated the Student and concluded that the Student continued to present with working memory and phonological processing skills that fell well below age expectations. Student’s reading skills were at a second grade level, and his GORT scores remained in the first percentile despite his average overall cognitive abilities. The evaluator concluded that Student has dyslexia characterized by poor phonological processing and a broader language disorder. He recommended that Student be placed in a small, substantially separate language-based classroom designed to meet the needs of students with dyslexia, rather than in a program offering Student isolated language support during the day, as Pembroke was doing. This time Pembroke disagreed with the recommendation of the agreed-upon evaluator and instead offered Student mainstream support for math, science and social studies, a language-based classroom for ELA, reading fluency instruction using a phonics-based program, speech-language therapy three times per week, and the same types of accommodations offered to Student in prior IEPs. Parent rejected the IEP during the fall of Student’s sixth grade year, and requested that Pembroke place Student in a private day school. Pembroke declined Parent’s request and stated that it was “thrilled” with the progress Student had been making in the beginning of sixth grade. Parent then filed a hearing request seeking a placement for Student in the language-based program offered at Beal Street Academy. In November of 2009, Student’s Developmental/Behavioral Pediatrician, who had seen Student several times over many years, wrote a letter informing the Team that Student reported he received so many accommodations that he no longer needed to do very much work on his own in Pembroke. For example, the doctor reported that Pembroke provided Student with “pre-written correct answers” to his homework so that he would not need to do any writing. She concurred with the neuropsychologist that Student required a specialized language-based program. The parties attended mediation at the BSEA, resulting in an agreement to have the neuropsychologist observe Student in his classes to determine whether Student’s current program was appropriate to meet his needs. However, after the mediation the parties learned that the neuropsychologist was unavailable, so Pembroke arranged to have its former school psychologist conduct the observation (Parent strenuously objected to Pembroke’s decision to use a former employee to assess the appropriateness of the program). The former school psychologist concluded that Pembroke’s sixth grade program was benefitting Student and that it incorporated most of the neuropsychologist’s recommendations. The Hearing Officer found the “evidence overwhelming that [Student’s] progress in reading, up to the beginning of the 2009- 2010 school year has been abysmal by any objective measure,” However, the Hearing Officer found that Parent nonetheless could not prevail because she failed to provide sufficient evidence that Student would not have been able to make progress during sixth grade (2009-2010). Accordingly, even though Pembroke did not provide convincing evidence about Student’s likely progress in sixth grade, Pembroke won “by default” because the parents did not present evidence specifically about deficiencies in the proposed program. We question this result. As another hearing officer has stated, “There is no ‘default’ setting under the IDEA or Massachusetts special education law.” Duxbury Public Schools, BSEA #09-0295, 15 MSER 34 (2009). The Hearing Officer had the power, and perhaps the obligation, to obtain further information on which she could make a substantive decision about the student’s placement for sixth grade. See, e.g., Duxbury Public Schools, BSEA #09-0295, 14 MSER 398 (2008), 15 MSER 34 (2009); 20 U.S.C. §1415((f)(3)(E)(i). 603 CMR 28.08(5)(c); BSEA Rule X(B). Comment: As this case amply shows, parents cannot rely only on a student’s lack of progress during prior years when trying a case at the BSEA. They must produce evidence and expert testimony about every IEP in dispute. The pro se parent in this case produced evidence that Student was receiving pre-written correct answers to homework during sixth grade, that Pembroke’s program was not a comprehensive substantially separate program as the evaluator had recommended, and that Student had made “abysmal” progress under Pembroke’s educational planning efforts. Furthermore, the sixth grade program did not seem significantly different from the previous programs, which had resulted in “abysmal” progress. We believe that, on these facts, the Hearing Officer could have concluded that Pembroke’s current IEP was inappropriate and that Student required placement in an intensive language-based program. Alternatively, the Hearing Officer could have kept the case open and ordered the parties to obtain further information from other sources, such as an agreed-upon independent evaluator.

Parents’ Request For An Out Of District Placement Defeated When District Proposes A New In-District Placement

Georgetown Public Schools, BSEA # 11-0291, 16 MSER 341 (2010) (Crane) In Georgetown, Parents sought an out of district placement. At the time of the hearing Student was four years old and had been diagnosed with Chromosome 15q Duplication Syndrome, an extremely rare disorder that causes global developmental delay/ PDD-NOS, and a range of deficits common to children on the autism spectrum. Student also suffered from a seizure disorder and was prone to choking. Independent evaluators confirmed that Student presented with PDD-NOS, attention deficits, difficulties with social interaction, and motor skill weakness. Student’s placement was in an integrated pre-school program that provided for individual instruction each afternoon, support from a 1:1 aide or other adult trained in CPR and the Heimlich maneuver throughout the day, related services (e.g., occupational therapy, speech-language therapy, and physical therapy), home- based services, and extended year services. In March 2010, Parents arranged for an educational consultant to observe student in the district’s program. At the Team meeting convened to discuss the independent evaluations and the classroom observation, the neuropsychologist and the educational consultant told the Team that the Student required a program that utilized ABA methodology and that ABA principles should be integrated into Student’s IEP. There was disagreement during the meeting about whether or not Student had been making progress, and the meeting ended before the Team was able to discuss Student’s placement. Georgetown issued an IEP after the Team meeting. Parents did not respond to the IEP directly and instead requested a hearing at the BSEA alleging Student’s IEP was inappropriate and requesting an out-of-district placement. The Team reconvened on May 27, 2010 to discuss Student’s placement. During the “contentious” meeting, Parents represented to the Team that Student had suffered a significant head injury as a result of falling off a bean bag chair at school. When Georgetown requested copies of Student’s medical records, Parents indicated they were not willing to provide these records and were not willing to continue trying to work out their disagreement with Georgetown informally. As a result of the Parents’ decision to end the meeting, the Team did not discuss Student’s placement. After the Team meeting, Georgetown retained a consultant to develop an individual safety plan for Student. The consultant developed a safety plan that included, in part, the use of a helmet to avoid future head injuries. Georgetown had been developing a substantially separate program called the Transitions Classroom with the help of an outside consultant. When the Transitions classroom opened in the fall of 2010, it had a total of six students with substantial cognitive and learning limitations, five aides, and one teacher. By the time of the hearing in September 2010, Georgetown had formally proposed to place Student in the Transitions Classroom and to provide him with daily opportunities to participate in the integrated pre-school classroom with a 1:1 aide. The Hearing Officer found that Parents had successfully demonstrated, in large part through the testimony of their educational consultant who had observed the student in the classroom in March 2010, that the IEP had not been appropriate to meet Student’s needs because it did not require the implementation of an individualized ABA-based program. The Hearing Officer found that the Parents had been justified in rejecting the proposed IEP in March. However, the Hearing Officer also found that Georgetown could correct the deficiencies in the proposed IEP by redrafting it to incorporate ABA principles and by offering Student a placement in the newly developed ABA-based Transitions classroom for the 2010-2011 school year. The Hearing Officer noted that the Transitions classroom incorporated many of the recommendations of parents’ educational consultant, including a very low teacher- student ratio, using an ABA-based approach to address Student’s individual needs, hiring an ABA consultant to oversee the program, hiring an in-district BCBA to also consult for the program, and providing Student with opportunities for inclusion. The Hearing Officer next turned to Parents’ claims for compensatory relief for the period between May 10, 2010 (the date they removed Student from school) and the end of the academic year. He noted that it was “not disputed that Student made no progress over the course of the 2009-2010 school year with respect to his aberrant behaviors.” Further, Student received no ABA-based programming during the 2009-2010 school year and the toileting program Georgetown had implemented was also not successful. However, the Hearing Officer found that Georgetown staff testified credibly that it was not in Student’s best interest to shift him into a new program late in the school year. He also found Georgetown presented persuasive evidence that Student had made progress during the 2009-2010 school year in some areas such as social skill development, language skills, as well as during his physical and occupational therapies. The Hearing Officer further noted that Parents’ classroom observer had not recommended that Student be moved into a different program at that time. The Hearing Officer found “that Student’s proposed IEP for the period from May 10, 2010 to the end of the academic year, although deficient in certain discrete areas, would have allowed Student to make substantial progress in many areas addressed by his IEP and would have allowed somewhat greater progress if the Parents had accepted certain methodologies and otherwise cooperated with Georgetown.” For these reasons, the Hearing Officer denied Parents’ claim for compensatory services. The Hearing Officer also commented that while Student’s placement had not been discussed by the Team, the Parents themselves were partly to blame by virtue of their decision to end the May Team meeting before a discussion could occur. Comment: This case shows again that Parents must have someone observe the program being proposed in a new IEP, not just the program from the previous IEP. Without that observation, Parents could not prove that the new (2010-2011) placement was not appropriate. With regard to the 2009-2010 placement, we believe that because the IEP was found to be inappropriate, some form of compensatory relief (even if not a change to a different program) should have been awarded in order to compensate the student for the district’s denial of FAPE.

District Prevails In Forcing Out Of District Placement When Parents Want To Remain In The District

Amherst-Pelham Regional School District, BSEA # 10-8888, 16 MSER 355 (2010) (Crane) In Amherst-Pelham, there was no dispute that the 13-year-old autistic student possessed “good” cognitive potential but had significant communication difficulties and had only acquired pre- elementary level academic skills and pre-literacy skills. Student also had substantial behavioral needs, which at times placed the safety of Student and those around him at risk. Student was placed in a substantially separate program in the district where he received all of his academic instruction and services outside of the mainstream classroom. Student initially was also provided with inclusion opportunities during gym, chorus, and the general advisory session of the day. At Parent’s request, however, Student only attended school for two and half hours per day. Amherst-Pelham assigned two staff to attend to Student at the beginning of the year. Unfortunately, it quickly became apparent that the two staff members could not stop or contain Student’s behaviors due to his large size, and the district hired a larger male aide who was experienced in managing students with behavioral issues. Even with this experienced aide, and another adult supervising Student at all times, Student still required the use of a “tether” during the day to prevent bolting. The tether was a yellow cord that tied around Student’s waist and was held by a staff member. Student was very compulsive and would grab and gather objects that were within his reach. He tended to bite, bolt, and shout at others. Due to Student’s behavioral issues and overall social skill deficits, Student was not able to interact appropriately with peers during the day. Amherst-Pelham staff were also concerned that Student’s tether served to further stigmatize him and did not serve to promote inclusion. The Team convened in December 2009 to discuss Student’s progress and the results of the district’s evaluations. Amherst- Pelham recommended at the meeting that Student be placed in an out of district ABA-based program that offered specialized instruction designed to meet Student’s needs. Parent rejected Amherst-Pelham’s proposed IEP. Student’s behaviors improved somewhat during the spring of 2010. He was able to participate routinely in his substantially separate program and was eventually re-introduced into the inclusion gym class as he became more comfortable near peers. Despite these positive developments, Student still required the tether and had to be accompanied by two staff at all times, and he continued to engage in inappropriate behaviors such as occasional biting, yelling, and stomping. Amherst-Pelham proposed to increase the length of Student’s day and provide Student with more than two and a half hours of programming, but Parent refused this request. Amherst-Pelham filed a hearing request at the end of the year seeking placement for Student in a private ABA-based program for the 2010-2011 school year. The pro seParent maintained that Student had the right to attend school within his own community and that Student had made effective progress in his current educational program and therefore did not require a different school. The Hearing Officer concluded that Amherst-Pelham met its burden of demonstrating that Student required a more restrictive, out of district ABA-based program in order to make effective progress. Specifically, the Hearing Officer found that there were significant concerns about Student’s behaviors, such as bolting, causing injury to others, and engaging in self-injurious activity. The Hearing Officer also found that Student, while possessing good cognitive potential, had developed minimal academic skills and was not able to make effective progress in the district’s program. He further found that Student does not possess an adequate communication system and requires immediate and intensive speech-language intervention. Based on these findings, the Hearing Officer concluded that Student’s behavioral, academic and communication needs necessitated an out-of-district placement in an ABA-based program. Comment: There are not many cases at the BSEA where the District is seeking an out-of-district placement against the wishes of the parents, but they do appear every so often. In this case, it appears that the District had good grounds for doing so and that the Hearing Officer correctly ordered such a placement. We note that the pro se parent did not present the testimony of any independent expert. If there had been expert support for her position, the result of this case might have been different.

Parents Fail To Prove The Need For Placement In A Substantially Separate Classroom

Lynn Public Schools, BSEA #10-3947, 16 MSER 316 (2010) (Berman) Student in this case was a six-year-old first grader, autistic but high-functioning with “superior” or “very superior” academic skills, and with weaknesses in expressive and receptive language, social skills, and adaptive life skills. Parents and Student moved to Lynn from another state shortly before Student’s kindergarten year (2009-2010 school year). When school began in the fall, Lynn attempted to implement the IEP Student had received from out-of-state. Because that IEP called for an integrated program, Lynn placed Student in its integrated kindergarten program, which was designed to serve students with autism and other disabilities within inclusion settings. Lynn’s integrated classroom served 22 Students from kindergarten through third grade, 7 of whom had IEPs. Lynn conducted several evaluations of Student during the fall. Lynn’s psychologist found that Student presented with extremely strong academic skills, but struggled with social skills and nonverbal behaviors. The district’s psychologist recommended placing Student in a small, highly structured, substantially separate classroom with similar peers, and providing Student with social skills instruction as well as opportunities to interact with typically developing peers. Despite the recommendation of the district’s own psychologist to the contrary, the district members of the Team proposed to continue Student’s placement in the integrated classroom. Parents did not want Student to remain in the integrated program because they believed that Student’s behavior had “dramatically regressed” since he began attending school in Lynn. They were concerned that Student was the target of bullying and expressed concern that the large integrated kindergarten classroom contributed to Student’s attention problems. In response to Parents’ concerns about Student’s behaviors, Lynn retained a behavioral consultant. The consultant observed Student in school and at home and reviewed parent and teacher responses to questionnaires about Student’s behavior. She reported that Student’s adaptive skills were generally in the low range in school and slightly improved at home. The consultant also reported that Student’s problematic behaviors were mostly rated by parents and teacher as “mild” or “moderate,” and that Student responded well to redirection. The consultant made various recommendations concerning Student’s social skill instruction and suggested that Student’s IEP be amended to incorporate a goal for attention, persistence and compliance. She concluded that Student did not require a Functional Behavioral Assessment or home services. Student’s service providers and teachers reported that Student was happy at school and was making gains towards his IEP goals. When Lynn scheduled a Team meeting to discuss the report, Parents cancelled the meeting and filed a hearing request, alleging that Lynn’s proposed IEP and placement were inadequate to meet Student’s needs and that the district had committed various procedural violations. An independent evaluator reported that Student’s performance was consistent with high-functioning autism and that Student met the criteria for a Learning Disability-NOS based on his difficulties with writing. She recommended Student be placed for part of his day in a substantially separate language-based classroom that was taught by a teacher trained in working with students who have autism spectrum disorders and language disorders and that was overseen by a professional with ABA expertise. She further noted that if Lynn did not offer such a program, Student should be placed in a private program and provided with mainstreaming opportunities after school. She also recommended that Student receive a Functional Behavioral Assessment. She did not conduct any observations of Student at Lynn or speak with his teachers directly (though she did ask his teachers to complete questionnaires). Lynn retained another consultant, who observed Student in his integrated classroom, reviewed the independent evaluator’s report, met with Student’s teachers, and discussed Student’s needs with the first consultant. He concluded that Student should remain in an integrated classroom with typical peers. Lynn scheduled another Team meeting to consider all the evaluations and observations. Parents did not attend the meeting. The Team, without the parents, developed an IEP that called for an integrated placement for the remainder of kindergarten and for first grade. The new IEP incorporated many of the evaluators’ suggestions, including offering Student structured reading, math and writing programs, providing a Functional Behavioral Assessment and developing a behavior plan, providing more explicit social skill goals, offering a monthly meeting with the home consultant and Team members, and ensuring frequent assessment of Student’s academic progress. The BSEA held a hearing in August 2010. Parents, represented by an advocate, did not present any expert witness testimony. Nor did they call the school psychologist who had recommended that Student be placed in a substantially separate classroom and whose report appeared to support their position. Instead, the Parents’ case primarily relied on their own testimony that Student had demonstrated physically aggressive behaviors at home, albeit sporadically, which they attributed to Student’s improper placement and the “hostile environment” created by Lynn. The Hearing Officer concluded that Parents had failed to meet their burden of demonstrating that Lynn’s proposed IEP was inappropriate for the Student. She noted that Parents did not offer any evidence that Student had failed to make progress in his current educational program. Further, while the independent evaluator had recommended a different type of placement, there was no evidence that she had concluded that Student’s current placement was inappropriate or that Student had been unable to make meaningful gains during the year. The Hearing Officer noted that Lynn’s last proposed IEP incorporated numerous suggestions from all the evaluators, and it addressed Student’s potential behavioral needs both in school and at home. The Hearing Officer also concluded that Parents failed to show that Lynn had created a hostile educational environment for Student. She noted that Parents’ use of the term “hostile educational environment” was somewhat confusing because the term has a specific legal meaning in gender-based discrimination claims brought under Title IX. In this case, Parents were not making a discrimination argument based on gender, but instead were alleging that Lynn’s actions were so hostile as to have interfered with Student’s ability to receive FAPE. The Hearing Officer found that Student had made meaningful progress at Lynn and therefore had not been denied FAPE. She also observed that there was no meaningful evidence to show that Lynn had acted in a hostile manner toward the Parents or Student. The Hearing Officer did award Student three compensatory speech-language therapy sessions, as Lynn acknowledged during the hearing that it had not provided these sessions during the fall of 2009. Commentary: Many parents refer to their children as being in a “hostile educational environment.” While there are certainly cases in which students have been discriminated against so pervasively due to their gender or disability that their educational environment has become “hostile,” typically parents must show that the discriminatory conduct reached the point of being “severe and pervasive” in order to obtain any relief as a result. In this case, the parents were clearly upset about their interactions with Lynn. However, a few isolated incidents with school officials will not support a claim against the school. The parents in this case also did not help their own cause by refusing to participate in Team meetings. Parents are expected to participate in the Team process and to show some flexibility. We also note, once again, that parents must have experts with direct knowledge of a student and direct knowledge about the student’s program testify at the hearing in order to prevail.

Contract Language Between Districts Prevents Out Of District Placement

Fairhaven Public Schools, BSEA # 10-6294, 16 MSER 265 (2010) (Oliver) In this case parents, residents of Acushnet, wanted their 17-year- old autistic son to be placed at Fairhaven High School for his senior year, and they made it clear that Fairhaven was the only placement they would accept. Because Acushnet does not have a high school, the town has an agreement with Fairhaven and New Bedford to allow Acushnet students to attend high school in those towns if those towns have an appropriate program. This student had previously been placed at the Cape Cod Collaborative, but his parents had removed him from school when he turned sixteen and insisted that he attend public school in Fairhaven, as his sister had done. Acushnet presented evidence that the special education departments of both towns had reviewed Student’s records, considered all available programs in Fairhaven High School, and agreed that there was not an appropriate program available for this autistic student, who had deficiencies in self-help skills, social skills, developmental skills, academic skills, and communication skills. Parents apparently presented no evidence to the contrary, other than their own testimony. The Hearing Officer dismissed the parent’s request for a due process hearing after concluding that that under the plain terms of the agreement, Acushnet could not send, and Fairhaven was not required to accept, Student into a program at Fairhaven High School.

Parents Fail To Demonstrate Student Requires 1:1 Aide

Boston Public Schools, BSEA #10-2292, 16 MSER 313 (2010) (Oliver) In this case Parent, acting pro se, did not dispute Boston’s proposed placement in a substantially separate program within Boston English High School for students with multiple disabilities. However, Parent argued that Student also required a 1:1 aide in order to receive a FAPE. The parties did not dispute that the then fourteen-year-old Student has multiple disabilities, including Moderate Mental Retardation, Cerebral Dysfunction, Oppositional Defiant Disorder, Hyperactivity and Impulsivity, and Propionic Academia (a metabolic disorder that requires Student to be fed through a gastric tube). Student’s cognitive and behavioral skills are severely compromised as a result of these conditions. At the time of hearing she was reported to be functioning below a three year-old level in her daily living skills, gross motor and socialization skills. Student’s program in Boston had a total of five students (including Student), one special education teacher, and two paraprofes- sionals. In addition, one of the students had a dedicated 1:1 aide. Boston testified that most of Student’s instruction occurred on a 1:1 or 1:2 basis and that Student was always accompanied by a teacher or paraprofessional during in-school transitions. Despite the relatively high teacher-student ratio in the program, Parent maintained that Student required a dedicated 1:1 aide. Parent was particularly concerned because Student had a history of toileting accidents on the bus to and from school. During the hearing Parent produced only two witnesses, herself and Student’s godmother. Both witnesses testified that Student has significant needs and requires a 1:1 monitor on the bus. Parent also entered into evidence letters from Student’s developmental-behavioral pediatricians supporting a 1:1 bus monitor for Student and observing that Student “may need” a 1:1 behavioral aide in the classroom. Before the hearing Boston agreed to provide a 1:1 bus monitor. Thus, by the time of the BSEA hearing the only issue for the Hearing Officer to decide was whether Student required a 1:1 aide in the classroom. The Hearing Officer concluded that Student did not require a dedicated 1:1 aide in the classroom. He noted that Parent did not provide testimony from any educators or evaluators recommending a dedicated aide. Further, Parent’s own testimony focused primarily on Student’s toileting needs to and from school, rather than concerns about Student’s support within the school setting. Finally, the Hearing Officer noted that with the high teacher-student ratio in Student’s program, Student already receives 1:1 support for most of her day. Comment: The pro se Parent did not have any evaluators observe the Student’s program. She did not present testimony of any independent expert to explain why a 1:1 aide was needed in the classroom. The mother and godmother were the only witnesses who testified that Student needed a 1:1 aide in the classroom. In these circumstances, the result is not surprising. Hearing Officer Refuses To Override Parents’ Lack Of Consent To The Sending Out Of Referral Packets, Where District Fails To Show Lack Of FAPE In Student’s Current Placement

Ralph C. Mahar Regional School District, BSEA # 10-7697, 16 MSER 263 (2010) (Putney-Yaceshyn)

A few months after the IEP had proposed and Parent had accepted a placement at Seven Hills (a day program) and at the Callan House (a residential program), the District’s Special Education Director requested consent from the parents to send referral packets to placements closer to the district. When the parents refused, the district filed for hearing, requesting that the BSEA provide “substitute consent” to send referral packets containing Student’s educational records to two collaborative programs. The Special Education Director stated that he felt it was important to determine whether there were in-district programs that would be better able to serve Student’s needs in a less restrictive environment. The student is non-verbal and presents with significant needs including autism, PDD-NOS, anxiety, and a medical condition known as Pica (this disorder causes persons to eat non-food items). The Hearing Officer first determined that, without an express regulation governing the requirements needed to authorize substitute consent for referral packets, she would consider Mahar’s request using the legal framework governing consent to re-evaluation in the Massachusetts Special Education Regulations, 603 CMR 28.07(1)(b). This regulation states that if, “subsequent to initial evaluation and initial placement,” a school district “is unable to obtain parental consent to a reevaluation¼the school district shall consider whether such action will result in the denial of free appropriate public education to the student.” If after such consideration the school district determines the parent’s refusal will result in a denial of a free appropriate public education (“FAPE”), the school district may proceed to the BSEA and request relief. Under this standard, the Hearing Officer quickly found that Mahar had not produced any evidence that Parent’s refusal to consent to the sending of referral packets had deprived Student of a FAPE. To the contrary, the Hearing Officer found that Student’s Team and service providers were in unanimous agreement that Student’s current educational program was appropriate and met his needs, and at least one of Student’s service providers voiced concern that Student’s negative behaviors would re-emerge if he left his current program. Further, Mahar introduced no evidence that there had been any change in circumstances since the last Team meeting that would justify overriding the Parent’s refusal to allow the sending of referral packets. The Hearing Officer concluded by noting that the appropriate time for Mahar to have requested consent to send out referral packets or discuss a placement change was during the Student’s Team meeting. The fact that Mahar had a change of heart after proposing an IEP to Student does not “justify overriding a parent’s refusal to consent to the sending of referral packets when a student is placed in a program deemed appropriate by the Team pursuant to an unexpired accepted IEP.” Comment: This case demonstrates that the appropriate time for school districts to consider new placement options for a student is during the process of developing an IEP and not after the IEP and placement have been accepted by the parent. This case also involved a particularly active special education administrator who appeared, on the facts presented, to be acting outside of the Team process. Teams, and not special education directors, should be making placement determinations. This decision helps to affirm the central role of the Team in developing a student’s educational program.

Causation And Credibility: Parents Fail To Prove Student’s Misconduct Was A Manifestation Of His Disability

Westford Public Schools, BSEA #10-6872, 16 MSER 257 (2010) (Scannell) The sole disciplinary decision reported this quarter, Westford Public Schools, BSEA #10-6872, 16 MSER 257, concerns the degree of proof needed to overturn a district’s determination that a student’s misconduct is not a manifestation of his disability. Under 20 U.S.C. §1415(k)(1)(E)(i) and 34 C.F.R. §300.530(e), with certain exceptions not relevant here, a student who is eligible for special education may not be suspended for more than ten days in a school year if his misconduct was a manifestation of his or her disability. Conduct constitutes a manifestation if it “was caused by or had a direct and substantial relationship to the child’s disability,” or resulted from the district’s failure to implement the child’s IEP. In this case, the parents did not assert any failure to implement the IEP, so the case turned on whether the student’s disability had caused, or was directly and substantially related to, the misconduct. The hearing officer found no causal connection, and thus concluded that there was no manifestation. On reading the decision, and without benefit of hearing the evidence, it appears that this case could have gone either way. The student was a bright 13-year-old seventh-grader with emotional impairments. He had been diagnosed with social anxiety, social phobia, and selective mutism. As the hearing officer described, the student “struggles significantly in his ability to develop and maintain satisfactory relationships with his peers, teachers and school staff,” and “exhibits difficulties with emotion regulation, anxiety and social pragmatics.” 16 MSER at 257. One evaluator, Westford’s school psychologist, concluded that the student “struggles significantly in his ability to build and maintain satisfactory relationships with peers and teachers” and “often demonstrates inappropriate types of behaviors and feelings under normal circumstances.” Id. at 259. It is worth noting that the school psychologist’s statements exactly track the definition of “emotional impairment” in 603 CMR 28.02(7)(f) (see also 34 C.F.R. §300.8(c)(4)(i)), and that the student had been found eligible for special education on the basis of emotional impairment. The school knew that the student was often oppositional and that he could become verbally or physically aggressive. The parents reported that boredom was one of the likely triggers for concerning behavior. The student’s IEP included emotional and behavioral goals and a behavior plan. The latter targeted “aggression, disrespectful language, and physical aggression.” 16 MSER at 261. The disciplinary dispute arose when it came to light that the student had compiled a list of names of Westford students, teachers, and staff, in connection with which another student said that he heard the word “shotgun.” On the other side of the list, the phrase “I am bored” was written more than fifty times. The hearing officer found that the list “was compiled when a fellow student urged [the student] to write the names of people he did not like, after she observed [the student’s] writing stating that he was bored,” and that several students had input to the list. 16 MSER at 261. The district found that the student had violated the school’s handbook (the exact provision was not specified). A manifestation meeting was held, at which the district determined that the student’s misconduct was not a manifestation of his disability. A principal’s hearing took place immediately afterward. The principal suspended the student for the remainder of the school year. Since the principal’s hearing took place on June 2, presumably there were only about three weeks left in the school year. The hearing took place on June 25, when the school year must have ended or been about to end, and the decision was issued on July 6. Although the decision does not so indicate, presumably the parents requested and received an expedited hearing pursuant to BSEA Rule II(C)(1)(a)(i). Even so, the decision came too late to have any practical effect on the student’s program. At hearing, the parents as the party seeking relief had the burden of proving that the misconduct was a manifestation of the student’s disability. Numerous Westford witnesses testified; the parents, in addition to their own testimony, presented the testimony of their son’s treating psychiatrist. The hearing officer stated that the psychiatrist “testified in a general manner about selective mutism and the difficulties it presents for [the student],” but “could not credibly testify as to the relationship between [the student’s] conduct and his disabilities.” 16 MSER at 261. She also appeared to discredit the psychiatrist’s testimony because he does not provide therapy to the student, did not speak with the student’s therapist about the incident, did not speak with Westford about the incident, and had never observed the student in school. This is the type of preparation that one would expect from an independent evaluator serving as an expert witness in a placement dispute, for example, but it seems to be an unrealistic standard for a treating physician in the context of an expedited disciplinary hearing. While the psychiatrist’s testimony may have lacked detail, it appears to this commentator that the hearing officer took an overly- narrow view both in defining the student’s misconduct and in applying the standard of 20 U.S.C. §1415(k)(1)(e)(i). On the first point, the hearing officer characterized the student’s writing of the list as being “different than conduct he had displayed in the past” because it “occurred in a social context with some involvement by other peers.” 16 MSER at 261. (Nowhere does the decision discuss the possibility that the peers, by egging the student on to create the list, might have been engaging in a form of bullying or harassment.) The hearing officer also stated that there had been no evidence of any precipitating event; she apparently discredited the parents’ testimony that boredom frequently triggered the student’s misbehavior. The hearing officer went on to state that the student’s “typical responses to triggering situations, namely nonresponsiveness and reactive verbal or physical aggression, were not noted during the event.” Id. She accepted the district’s characterization of the development of the list as “a unique behavior that school staff had not seen before.” Id. Presumably, however, verbal aggression—the making of a threat to harm others by shooting them—was exactly why the student was being disciplined, as the making of a list of names, in and of itself, would hardly violate a school’s code of conduct. Moreover, a manifestation cannot be limited to the types of misbehavior that are specified in an IEP or behavior plan. Even assuming that a specific behavior has not been observed in school before, that does not mean that it cannot be a new manifestation of the student’s existing disability. In this case, it would seem that the making of the list, coupled with a possible threat to harm those on the list, could have been seen as “inappropriate types of behavior under normal circumstances,” displaying “an inability to build or maintain satisfactory interpersonal relationships with peers and teachers”—two factors that the school psychologist herself stated that the student exhibited, and that are so directly and substantially related to emotional impairment as to form part of its legal definition. As to the second point, the application of the standard for a causal or direct and substantial relationship between disability and misconduct under 20 U.S.C. §1415(k)(1)(e)(i), it appears that the hearing officer again took such a narrow view that it became almost impossible for the parents to show a relationship between the disability and the conduct. In support of her conclusion that no relationship existed, the hearing officer stated that there was no evidence either that the student “was unable to control his behavior in writing a list of names of people he did not like” or that he “was unable to appreciate the consequences of his behavior” because of his disabilities. 16 MSER at 261. The concepts of inability to control one’s behavior and inability to appreciate the consequences of one’s behavior appear to be borrowed from the insanity defense in criminal law. (Under the Model Penal Code standard, a defendant is not responsible for criminal conduct “if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.”) Although the satisfaction of either of those criteria would certainly result in a manifestation, the converse is not also true. A defect in volition or cognition is not required for a manifestation under IDEA. The manifestation standard in IDEA is broader, requiring only a causal link or a direct and substantial relationship—both of which appear to have been present in this case.

Substituted Consent: School Districts’ Evaluation Proposals Upheld Over Parents’ Objections In Two Cases

Lincoln-Sudbury Regional School District, BSEA No. 10-6037, 16 MSER 267 (2010) (Berman)Lowell Public Schools, BSEA No. 11-0039, 16 MSER 365 (2010) (Crane) Two cases this quarter, Lincoln-Sudbury Regional School District, BSEA No. 10-6037, 16 MSER 267, and Lowell Public Schools, BSEA No. 11-0039, 16 MSER 365, considered a school district’s request for substituted consent to re-evaluate a student who was already receiving special education. In both cases, the pro se parents objected to the district’s proposed evaluation and were in the process of obtaining an independent evaluation. In both cases, the hearing officer found that the district had met its burden of proof. Both evaluations were therefore allowed to proceed over the parents’ objections. The student in Lincoln-Sudbury was a fifteen-year-old girl in ninth grade. She had previously been diagnosed with ADHD and a learning disability, and was receiving services under an IEP to address her needs in those areas. Her last re-evaluation had taken place in seventh grade. The district sought permission for a psychological evaluation, including projective and personality testing, to be performed by an independent psychologist of its choosing. The district believed that the student might have emotional disabilities, in addition to those disabilities that had already been identified. In support of its position, the district pointed to the facts that, since entering high school, the student had engaged in multiple problematic behaviors, including “repeated lying, tardiness, leaving campus without permission (three times), acknowledged experimentation with cigarettes, alcohol and marijuana (outside of school), wearing overly revealing clothing despite advice and redirection, sneaking out of her house at night to go to an older boy’s house (on one occasion) and a history of self-injury (cutting her arms).” 16 MSER at 269. She had been involved in 23 disciplinary incidents over the course of the school year. One incident involved pushing another student, but the majority involved “cutting class, taking excessively long breaks from class, excessive tardiness to class, and then failing to attend the detentions that had been imposed as a consequence.” Id.at 270. She had also endorsed three out of six items on a suicide screening questionnaire, indicating that she was at risk in that area. The parents argued that the proposed re-evaluation was not necessary for several reasons. First, they contended that the student’s behaviors were not unusual and were in fact typical of many students at her school. The parents also argued that her behaviors were attributable entirely to her already-diagnosed disabilities and that the behaviors could be addressed through better services or accommodations for those disabilities. The parents objected in particular to the proposed projective and personality testing. They argued that such testing was neither valid nor reliable. They asserted that such testing would harm their daughter by stigmatizing and labeling her, without providing any useful information for educational planning. The parents cross-examined the district’s witnesses and submitted a number of articles from sources such as scholarly journals, but they neither testified themselves nor presented any other evidence. The district presented four witnesses: the student’s special educator, her guidance counselor, a school psychologist, and the special education director. The hearing officer afforded “significant weight” to the testimony of the special educator and guidance counselor, who knew the student well and who testified “candidly and persuasively” regarding “both Student’s presentation at school and their need for further information to serve her effectively.” 16 MSER at 273. The hearing officer also found the testimony of the school psychologist and the special education director to be “credible and persuasive” regarding the usefulness of projective and personality testing and the way in which the results would be used. Id. The hearing officer concluded that the district was not only permitted but compelled to obtain a comprehensive evaluation “where, as here, (1) the Student’s behavior interferes with her educational progress, (2) has persisted despite much individual attention by Student’s special education liaison and guidance counselor, outside counseling by two therapists, and consistent involvement by committed and knowledgeable parents, and (3) implicates her safety and well-being,” regardless of the cause of the behavior and regardless of whether other students might behave in a similar manner. 16 MSER at 274. The district’s concern was commendable. We note that the district’s concerns were based at least in part on behaviors that occurred outside of school, and in part on fairly minor disciplinary violations. In representing parents, we find that school districts often discourage parents from pursuing evaluations, or deny eligibility after evaluation, when the parents’ concerns involve behaviors that are observed at home but not at school, or involve in-school infractions that “all kids” commit. In this case, the hearing officer found that the parents had failed to demonstrate that the proposed projective and personality testing would be either unreliable or harmful. Because the parents “presented no witnesses with relevant expertise to challenge the School’s testimony about the value of the tests, or to explain and discuss the articles Parents submitted,” 16 MSER at 274-75, the hearing officer concluded that she had “no basis for giving any weight to the articles and the testimony of the School’s witnesses is unrefuted.” Id. at 275. Similarly, the hearing officer stated, the parents had presented no evidence to show that the student would be harmed by the proposed testing. The hearing officer pointed out that neither of the student’s two psychotherapists had made any statement, whether through testimony or in writing, to that effect. Lastly, the hearing officer rejected the parents’ argument that the district’s testing was precluded by the fact that the parents were obtaining an independent psychological evaluation. As the hearing officer stated, although the parents have the right to obtain an independent evaluation and have it considered by the Team, the district retains the right to conduct its own evaluation as well. Similar issues regarding evaluation arose in Lowell, which involved a seven-year-old second-grader who was overdue for his three-year re-evaluation. The parent objected that a re-evaluation was not necessary because his son, who was on an IEP, had been doing well in school and making good progress. The hearing officer rejected this argument, stating that “even if I were to agree with Father entirely regarding his son’s progress and success in school, this would not change the necessity for an updated three-year evaluation.” 16 MSER at 366. As the hearing officer pointed out, the evaluation might well show that the student was doing so well that “future special education and related services may not be needed or may be adjusted so that they are commensurate with the Student’s current educational needs.” Id. Without a re-evaluation, the hearing officer stated, the district would be unable to comply with state and federal laws that require the district to determine continued eligibility and to tailor any needed services to the student’s current needs. The parent also pointed out that the student was in the process of receiving an independent evaluation. The hearing officer, like the one in Lincoln-Sudbury, found that this had no bearing on the district’s request for substituted consent. The hearing officer reiterated the general principle that “a parent may not preclude a school district from evaluating their son or daughter, nor may a parent force a school district to rely upon a parent’s own evaluation.” 16 MSER at 366. The district was allowed to proceed with its re-evaluation, consisting of psychological, academic, speech- language, home, and functional behavioral assessments.

School Refusal, Extended Evaluations, And Physicians’ Statements

Middleboro Public Schools , BSEA #s 10-0006 & 10-3523, 16 MSER 305, and Ludlow Public Schools, BSEA #10-3822, 16 MSER 324, were similar to each other. Both cases concerned adolescents with emotional and other disabilities who had missed a great deal of school. The student in Middleboro often refused or was unable to attend school, due to his emotional condition; in Ludlow, it appears that the parent, on the advice of the student’s physician, kept her out of school for more than a year. In both cases, the students’ physicians submitted statements for home or hospital education, which were deemed insufficient. In both cases, an issue arose regarding extended evaluation. In Middleboro, the parent’s request for an extended evaluation at a private program was denied, while in Ludlow the district’s request for an extended evaluation in two public school settings was granted. The parent in Middleboro was represented by an advocate; the parent in Ludlow was pro se. In Middleboro, the parent originally filed for a hearing, seeking a ruling that the district’s IEP, which proposed an in-district therapeutic program, failed to meet the student’s needs. The parent also contested the district’s failure to provide home services in response to the physician’s statements, and sought an extended evaluation at the private Wareham Academy. The parties then reached a mediated agreement aimed at helping the student to return to school. When that proved unsuccessful, the district filed its own hearing request seeking, inter alia, a finding that its IEP was appropriate and a finding that the parent was denying the student FAPE by allowing him to refuse to attend school. The hearing officer stated that, because each party had filed a hearing request regarding the appropriateness or inappropriateness of the IEP, the parties would share the burden of proof on that issue. He did not elaborate as to how such sharing of the burden would be allocated in practice. As an initial matter, the hearing officer had little trouble in concluding that an extended evaluation was not warranted. For one thing, he pointed out that under 603 CMR 28.05(2)(b), an extended evaluation is allowed only when the Team finds that the existing evaluation results are insufficient to develop an IEP. That was not the case here, as the district had developed a complete IEP. Moreover, neither of the expert witnesses called by the parent (a psychiatrist and a neuropsychologist) recommended an extended evaluation. Furthermore, the parent introduced no evidence regarding Wareham Academy. The student had not even applied there, let alone been accepted there; neither of the independent experts had observed the program; and the parent could not explain how the program would address the student’s issues. The hearing officer went on to find that the IEP, with modifications (consisting of two new evaluations to be arranged by the district), was appropriate for the student. One may wonder how an IEP can be appropriate if it is not addressing a student’s emotional issues in such a way as to allow him to return to school. The hearing officer stated that he believed the psychiatrist’s testimony that the student’s non-attendance was related to his psychiatric condition, that the student was not avoiding school just to do so, and that the parent and student both wanted him to attend school. The hearing officer seemed to ascribe a volitional component to the student’s non-attendance, however. In a strongly- worded passage, he accused the parent and student of “subvert[ing] the mediation agreement,” “totally failing to cooperate” with the district’s behavioral consultant, and “completely sabotag[ing] the entire purpose” of the mediation agreement. 16 MSER at 309. The hearing officer concluded that “the alternative of not going to school for [the student] is actually quite attractive and allows [the student] the avoidance of responsibility and addressing his issues,” and that “there needs to be some form of motivation for [the student] not to remain at home.” Id. The hearing officer also found that the student’s lack of attendance at school constituted a denial of the student’s right to FAPE. The practical effect of such a finding is unclear. Under IDEA and M.G.L. c. 71B only the school district, not the parent or student, has the obligation to provide FAPE; presumably, therefore, only a district may be liable for denying it. In this case, the finding that the district’s IEP was appropriate should have been sufficient to determine the controversy at issue. It does not appear to add anything to blame the parent or student in these circumstances. Lastly, the hearing officer found that the district was not required to provide home tutoring to the student under 603 CMR 28.03 (3)(c). That regulation requires a district to arrange for educational services in the home or hospital when a physician verifies in writing that the student “must remain at home or in a hospital . . . for medical reasons” for at least fourteen days during a school year. The hearing officer quoted a question and answer guide from DESE’s Program Quality Assurance office that interprets this language restrictively, saying that the student must be “confined” to a home or hospital for medical reasons. The hearing officer then conflated the two standards, saying that the regulatory scheme requires that the student “must remain at home/be confined to home for medical reasons.” 16 MSER at 310; see also id. at 311. Because the evidence showed that the student sometimes played outside on days when he did not go to school, the hearing officer concluded that the student was not “confined to home” and therefore not entitled to receive home tutoring. We believe that there can be a significant difference, however, between being “confined to home” for medical reasons (the language of the advisory, which this student clearly did not satisfy) and needing to “remain at home” for medical reasons (the language of the regulation, which some students with emotional disabilities could well satisfy, even if they are physically able to set foot outdoors). If the DESE’s interpretation conflicts with the regulation, of course, the language of the regulation should control. See, e.g., Uxbridge School District, BSEA #11-1115, 16 MSER 334 (2010); Boston Public Schools, BSEA #01-2461, 7 MSER 16, 19 (2001). In this case, the result would have been the same even if the hearing officer had used the more general standard of the regulation, because the hearing officer concluded that the three Physician’s Statements for Temporary Home or Hospital Education, submitted by the student’s psychiatrist, were deficient. The statements appear to have consisted mainly of recitations of the student’s diagnoses and requests for a different placement. Lack of specificity on a physician’s statement is a fairly common problem, which could perhaps be alleviated by the DESE’s development of a form that requires the physician to answer more detailed questions. In the meantime, however, practitioners should be alert to the facts that a physician’s statement “must provide a basis to conclude that the student cannot be educated within a school”; that “a simple recitation of the student’s diagnoses is not sufficient”; and that a physician’s attempt to use the form to change the student’s placement may be looked upon with disfavor. 16 MSER at 311. In Ludlow, the Physician’s Statements submitted by the student’s psychiatrist were also found (by a different hearing officer) to be inadequate. In that case, the district had accepted the statements and provided tutoring, but the parent asserted that the quality and amount of tutoring were insufficient. The hearing officer found no violation, because she concluded that the defects in the physician’s statements meant that the district was under no obligation to provide any tutoring at all. The hearing officer focused on the fact that the physician had not indicated the “expected duration of the confinement,” as the DESE’s form requires. Instead, the physician stated that the student’s condition was indefinite and would depend on the educational setting she attended. Although it is likely that the duration of some medical conditions, particularly of the emotional variety, will be difficult to predict, the better course would be for the doctor to give his or her best estimate as to the duration and to submit an updated form later if the initial estimate turns out to be inaccurate. Two IEPs were at issue in Ludlow, one for 2009-2010 and one for 2010-2011. The hearing officer concluded that both were appropriate because the IEPs incorporated all of the recommendations made by an independent neuropsychologist, as well as by school personnel, for a self-contained, therapeutic, language-based program. The IEPs did not follow the additional recommendations of the student’s psychiatrist and therapist, who stated that the student needed to attend a program in a private setting. With regard to the 2010-2011 program, the hearing officer noted that, “other than its location in a public high school building, the [district’s proposed program] contains all services and elements recommended by [the psychiatrist].” 16 MSER at 330. The hearing officer explained that she gave little weight to the psychiatrist’s and therapist’s recommendations for a private school “because neither has observed the program(s) proposed for [the student], has seen her in a school setting or has spoken to any Ludlow school personnel about [the student] or school services,” and because they had based their opinions about the appropriateness of a proposed public school program “on parental reports which I have observed to be unreliable.” Id. Once again, the importance of having expert witnesses observe proposed programs and communicate with school staff is obvious. Also, if the district’s proposed program contains all of the other elements recommended by an evaluator, the public-versus-nonpublic distinction is a weak basis on which to bring a case, unless the evaluator can clearly articulate the reasons for the private school recommendation and demonstrate the relevant differences between the two settings.   One troubling aspect of Ludlowlies in the fact that the hearing officer upheld the 2009-2010 IEP, despite “significant procedural difficulties” with that document. 16 MSER at 329. The IEP’s defects, which the hearing officer characterized as “obvious drafting errors,” appear to this commentator to have been crucial omissions. As the hearing officer stated, the IEP “does not set out the location or name of the school or program in which the services will be delivered; it does not set out a full day of academic services consistent with the self-contained nature of the proposed classroom, it lacks explicit social skills and social communication goals although these are primary recommendations for [the student] as well as primary components of the program described by [a district special educator]; and it fails to list all the available therapeutic and supportive services identified as integral components of the program by school witnesses.” Id. The hearing officer concluded that no harm occurred as a result of the IEP’s many infirmities because she found that it was “clear from the testimony of the teachers and the parent that the items missing from the IEP document were not missing from the other information shared with the Parent through visits, Team meetings, and discussions with Baird Middle School and special education personnel.” Id. We think that parents should not have to rely on “discussions,” which are often vague or conflicting, and which are not generally enforceable at the BSEA unless memorialized in an IEP. Parents and students have the right to a complete IEP, including all of the elements specified in 20 U.S.C. §1414(d)(1) (A), 34 C.F.R. §300.320, and 603 CMR 28.02(11) and 28.05(4). These include a complete set of goals and a complete description of all services being proposed. Parents also have the right to a written designation of the child’s placement, including the location and name of the proposed program. See Boston Public Schools, BSEA #04-2506, 10 MSER 311, 313-19 (2004). The district controls the contents of an IEP. Parents should not have to guess at what is being offered, nor should districts be excused from their responsibility to provide an IEP that contains all of the elements required by law. The hearing officer in Ludlow also granted the district’s request for an extended evaluation, which was to take place in two settings at the end of the 2009-2010 school year and during the summer of 2010. The hearing officer found that the request for an extended evaluation was reasonable because the district needed current information about the student in order to develop a “responsive IEP.” 16 MSER at 330. Under 603 CMR 28.05(2)(b), however, an extended evaluation may take place only when the existing information is “insufficient to develop an IEP.” See Middleboro Public Schools(discussed above). Here, in the same decision in which she approved the extended evaluation, the hearing officer upheld two IEPs, including the one for the 2010- 2011 school year, as being appropriate. This leaves the reader wondering: if the existing IEPs were not complete and responsive, how could they be appropriate for the student? And if the IEPs were complete and appropriate, why was an extended evaluation allowed?

Stay-Put Applies During Pendency Of Dispute Over Student’s Continued Eligibility

Uxbridge School District, BSEA #11-1115, 16 MSER 334 (2010) (Crane) In Uxbridge School District, BSEA #11-1115, 16 MSER 334, the district determined midway through a student’s IEP period that the student was no longer eligible for special education. In its notice to the parents regarding its determination, the district stated that it would discontinue the student’s services within 30 days of the date of the Team meeting. The parents notified the district that they disputed the finding of no special needs and asserted the student’s stay-put rights pursuant to 603 CMR 28.08(7). The parents did not file a hearing request at that time. The district proceeded to discontinue the student’s services, taking the position that the filing of a hearing request was required to trigger stay- put protections during an eligibility dispute. Over a year later, the parents filed for hearing. The hearing officer soundly rejected the district’s position. In a detailed and well-reasoned discussion, he pointed out that, under the plain language of 603 CMR 28.08(7), “stay put protections are triggered as soon as there is ‘any dispute’ between parents and a school district regarding special education services or placement.” 16 MSER at 335. Taking into account not only the language of the regulation but the entire state regulatory scheme, the hearing officer concluded that the phrase “any dispute” is “not limited to those disputes where a request for a due process hearing has been filed with the BSEA.” Id. The hearing officer acknowledged that certain statements within a DESE advisory (Administrative Advisory SPED 2001-4) apparently took a different view, in the context of a finding of ineligibility. The hearing officer found, however, that the advisory contained no analysis or explanation of those statements, nor did the advisory even reference state or federal statutes or regulations regarding stay-put. He concluded that the statements within the advisory have no persuasive authority. The district also argued that having to provide stay-put services would result in the student’s receiving an inappropriate program, since the IEP on which the services were based was over a year old and (the district contended) the student’s needs had changed. The hearing officer observed that stay-put principles “do not necessarily rule out adjustments as a student advances in age and grade,” and that “the central inquiry is the actual educational impact upon the student as a result of any change of services or setting.” 16 MSER at 336 n.15. See also Concord School District, BSEA #11-0594, 16 MSER 337 (2010)(discussed below). In our experience, confusion over stay-put during an eligibility dispute is not uncommon (due perhaps to the existence of the DESE advisory). After Uxbridge, however, school districts are on notice that they are required to continue providing special education and related services whenever parents dispute a finding that a student is no longer eligible, even if the parents have not filed a hearing request.

Change From Typical Regular Education Classroom To Co-Taught Regular Education Classroom Does Not Violate Stay-Put

Concord School District, BSEA #11-0594, 16 MSER 337 (2010) (Crane) The same hearing officer who decided Uxbridge had a chance to consider the degree to which “stay-put” allows services to be modified. In Concord School District, BSEA #11-0594, 16 MSER 337, the student’s stay-put IEP specified a full inclusion program. Most of the student’s time had been spent within a typical regular education classroom. For the next school year, the district proposed an IEP under which the student would continue to receive a full inclusion program, but in a regular education classroom co-taught by a special educator and a regular education teacher. The parents rejected that IEP in part and asserted that the student had a stay-put right to continue in a regular education classroom that was not co-taught. In the circumstances of this case, the hearing officer rejected that argument. First, the hearing officer reiterated that, in order to determine whether a change in a student’s program violated his stay-put rights, the hearing officer needed to ascertain the “actual educational impact upon the student” as a result of that change. 16 MSER at 338. As the hearing officer explained, the educational impact would need to be “detrimental and substantial,” id., resulting in “’a fundamental change in, or elimination of, a basic element of the educational program,’” id. at 338-39, or “a ‘departure from the student’s LRE-compliant setting,’” in order to violate stay-put. Id. at 339. In this case, the hearing officer found that a change from a non-co-taught to a co-taught class was not such a change. The hearing officer, following John M. v. Board of Educ. of Evanston Tp. High Sch. Dist. 202, 502 F.3d 708 (7th Cir. 2007), noted that co-teaching is considered to be a teaching methodology, and that districts “are generally given discretion to select the particular methodology that is to be used for a student, so long as the methodology is likely to allow the student to receive FAPE.” 16 MSER at 339. Thus, in the stay-put context, “a school district would normally be given the discretion to select and change methodology unless the particular methodology may be considered part of the IEP.” Id. In this case, the IEP did not specify that the student be placed in a non-co-taught classroom. The parents argued that a co-taught classroom was inconsistent with the student’s need for a structured classroom with consistent rules and minimal disruptions, as set forth in the stay-put IEP. The hearing officer found, however, that there was no persuasive evidence that the co-taught classroom would fail to provide the student with such an environment. The parents also attempted to argue that the co-taught classroom was more restrictive than a non-co-taught class, because there would be a larger percentage of special education students in the co-taught classroom. The hearing officer rejected this argument as well, holding that LRE principles are not implicated under these circumstances. Lastly, the parents argued that, regardless of what considerations were addressed in the IEP, the change of classrooms would violate stay-put because it would result in a substantial diminution of the student’s services. The parents pointed out, for example, that in the co-taught classroom the student would have fewer fixed routines and a more flexible schedule for delivery of his special education services. The hearing officer rejected this argument as well, holding that stay-put principles do not “extend to the right to replicate the precise teaching environment of a regular education classroom from one year to the next.” 16 MSER at 340. As he stated, “Stay-put principles simply do not extend to this level of detail, even though these details may have educational significance, unless the student’s stay-put IEP requires it.” Id. If the hearing officer’s interpretation of stay-put is accepted, practitioners will need to scrutinize the stay-put IEP and proposed stay-put program carefully, in accordance with the principles set forth in this decision, in order to ascertain whether a proposed change is detrimental enough to violate stay-put.

Statutes Of Limitations (IDEA And Section 504) And Notices Of Unilateral Placement

Danvers Public Schools, BSEA #10-1721, 16 MSER 300 (2010) (Oliver) In Danvers Public Schools, BSEA #10-1721, 16 MSER 300, the parents filed a hearing request on September 3, 2009. They sought reimbursement for their unilateral placement of their daughter at New England Academy for the 2007-2008 and 2008- 2009 school years. The first major problem for the parents was that IDEA allows only a two-year look back; thus, any claim for more than two years back is barred by IDEA’s statute of limitations, 20 U.S.C. §1415(f)(3)(C). The parents tried to get around this problem by arguing that they were bringing their claims under Section 504, as well as under IDEA. Section 504 has no specific statute of limitations, so the statute of limitations under 504 must be analogized from other statutes, which could have longer statutes of limitation. This was an ingenious argument by the parents, but it didn’t work. On the district’s motion to dismiss, the hearing officer held that all claims predating September 3, 2007 were time-barred, under Section 504 as well as under IDEA. Following Boston Public Schools, BSEA #09-1007, 15 MSER 100 (2009), and PP ex rel. Michael P. v. West Chester Area Sch. Dist, 585 F.3d 727 (3d Cir. 2009), he concluded that IDEA’s two-year statute of limitations is also the applicable statute of limitations for Section 504 claims in Massachusetts. That ruling on the statute of limitations would limit the parents’ claim to the period after September 3, 2007, and they had placed their daughter in August 2007. While that loss of a month or less of reimbursement does not seem such a hardship, parents had another problem. The district claimed that the parents had failed to give proper notice pursuant to 20 U.S.C. §1412(a)(10)(C)(iii) as to their intent to place the student at NEA and seek public funding for the placement, before making the placement in August 2007. That statutory notice provision states that hearing officers can reduce or deny reimbursement for private school tuition if the parents fail to give notice, with reasons, at either the last Team meeting or ten calendar days before removing their child from public school. The hearing officer found that the parents did give notice at a September 18, 2007 Team meeting, but that was after they had placed their daughter in the private school. Although the notice provision gives the hearing officer discretion whether to reduce or deny reimbursement for parents’ failure to comply with the notice requirement, the hearing officer stated that, “[b]ased upon just these facts and the applicable law I would ordinarily grant [the district’s motion to dismiss] for the entire 2007-2008 school year.” Id. The hearing officer did not explain why he would be inclined to deny reimbursement for the entire school year instead of only for the time before the parents gave notice, but he did not have to make that ruling, because he found that when the student’s IEP expired in March of the student’s first year in private school, the district did not offer any IEP or placement at all until June. Because the failure to offer an IEP and placement for three months “is a significant violation of the statutory and regulatory scheme of both federal and state special education law,” 16 MSER at 304, the hearing officer held that the parents’ reimbursement claims for that three-month period of the 2007-2008 school year would be permitted to proceed. He concluded that, “[a]bsent some extremely mitigating circumstances or mutual consent of the parties, such a situation simply cannot be allowed.” Id. This result underscores the general principle that failure to develop an IEP is an automatic denial of FAPE, for which relief will almost always be granted.

Hearing Officers Continue To Differ Regarding BSEA Jurisdiction Over Settlement Agreements

Monson Public Schools, BSEA #10-5064, 16 MSER 296 (2010) (Byrne) The parents in Monson filed a hearing request seeking interpretation of a clause in a settlement agreement concerning the method of calculation of reimbursement to the parents for transportation expenses and for a computer. The agreement had been negotiated between the parties in resolution of disputed claims covering four school years. Both parties were represented by counsel in the negotiation of the agreement. The agreement was not the result of a mediation pursuant to 20 U.S.C. §1415(e) or a resolution meeting pursuant to 20 U.S.C. §1415(f)(B); the provisions of the agreement were not incorporated into the student’s IEP; nor does it appear that the agreement was reached through a BSEA settlement conference. The agreement included a provision stating that the BSEA or any court of competent jurisdiction could enforce the agreement. When the parents asked the BSEA to enforce the agreement, however, the district moved to dismiss, asserting that the BSEA lacked jurisdiction to do so. The hearing officer in this case concluded that the BSEA does not have jurisdiction and dismissed the case. As this hearing officer (Lindsay Byrne) acknowledged, not every hearing officer would have reached the same result. She described the issue of jurisdiction over settlement agreements as one that has occasioned “considerable debate in the special education bar and within the BSEA for some time.” 16 MSER at 297. Within the past several years, the cases that have considered this issue have concluded that, where a settlement agreement relates to rights and responsibilities that fall within the BSEA’s purview, the BSEA may interpret the agreement. E.g., Peabody Public Schools, BSEA #09-6506, 15 MSER 154, 156-57 (2009); Mashpee Public Schools, BSEA #09-1946, 14 MSER 331 (2008); Longmeadow School District, BSEA #07-2866, 14 MSER 249 (2008); see also Wachusett Reg. Sch. Dist., BSEA #09-2526, 14 MSER 382 (2008) (BSEA has jurisdiction to interpret resolution agreement); Wrentham Public Schools, BSEA #08-1326, 14 MSER 230 (2008) (BSEA has jurisdiction to interpret cost-share agreement between two districts). The hearing officer in Monson, however, elected to follow her previous decision in Agawam Public Schools, BSEA #02-2374, 8 MSER 103 (2002) (see also Foxborough Public Schools, BSEA #s 10-6287 & 10-7942, 16 MSER 214 (2010), regarding a resolution agreement), and held that the BSEA lacks such jurisdiction. The parents argued that the BSEA has jurisdiction over settlement agreements for three reasons: the broad grant of jurisdiction to due process hearing agencies in 20 U.S.C. §1415(b)(6)(A) and 603 CMR 28.08(3)(a); the need for the parties to exhaust administrative remedies; and the promotion of one of IDEA’s primary aims, effective dispute resolution. The hearing officer rejected each of these arguments. With regard to the statutory and regulatory grants of jurisdiction, she reasoned that, because neither resolution agreements nor mediation agreements are expressly made reviewable by the BSEA, settlement agreements should be treated the same way. In her view, a settlement agreement represents a privately-negotiated document, whereas the BSEA “exists to enforce the public duties set out in the IDEA,” 16 MSER at 298; to ensure that “public responsibilities [to individual students] are appropriately developed, designed, and implemented,” id.; and “to assure appropriate, accessible, equitable public education to students with disabilities,” id., including “ensuring the proper distribution of funds for a public purpose.” Id. at 299. Thus, she found that the BSEA is “not required to take jurisdiction of privately negotiated settlement agreements that are not incorporated into an IEP.” Id. Her view on this issue allowed her to dispose of the parents’ second argument quickly: because the hearing officer concluded that the BSEA lacked jurisdiction, she stated that resort to the BSEA was not required before a party could go to court to enforce a settlement agreement. Lastly, the hearing officer expressed skepticism as to the parents’ policy arguments, and stated that those arguments in any event could not skirt what she viewed as “black and white jurisdictional limitations.” Id. We anticipate that the issue of BSEA jurisdiction over settlement agreements will continue to arise periodically, until Congress, the Legislature, or the courts clarify the matter. In the meantime, practitioners can learn several lessons from the cases that have considered this issue. First, when negotiating any settlement agreement, it is worth considering whether to request incorporation of the agreement into the student’s IEP. Second, even if the settlement agreement embodies the parties’ agreement that the BSEA may enforce the agreement, that provision itself may turn out to be unenforceable. Third, it may be wise to resort to the BSEA before going to court regarding a settlement agreement in any event, in order either to satisfy the exhaustion requirement (if the hearing officer believes that the BSEA has jurisdiction) or to obtain a ruling that exhaustion is not necessary (if the hearing officer follows Monson).

Compliance: A BSEA Decision Ordering Reimbursement Must Be Implemented Immediately

Sudbury Public Schools, BSEA #10-0704, 16 MSER 361 (2010) 2 (Crane) In Sudbury, the parent had earlier succeeded in obtaining an order from the BSEA after an evidentiary hearing, which required the district to reimburse her for the costs of a unilateral placement at the Carroll School for the 2009-2010 school year. Under 603 CMR 28.08(6) and BSEA Rule XIII(C), a hearing officer’s decision “shall be implemented immediately.” At the time of this compliance proceeding, however, more than four months had elapsed and the district had refused to reimburse the parent. The district asserted that it was not required to comply immediately with any order except an order for placement. The hearing officer concluded that the district’s position was erroneous. He found that both state and federal law require immediate compliance with a BSEA decision. The fact that the district had filed an appeal from the decision did not excuse its obligation to comply. As the hearing officer stated, there is “no authority that would support an automatic stay simply on the basis of [the district’s] appeal to federal court,” 16 MSER at 362, nor had the district sought a stay from the court. The hearing officer therefore ordered the district immediately to reimburse the parent for all expenses due under the BSEA’s earlier decision.

Commentary on Massachusetts Special Education Decisions: 2nd Quarter, 2010, by Daniel T.S. Heffernan

April 03, 2010

Introduction

Within the second quarter's BSEA decisions are a wide range of rulings reiterating well-established principles of Massachusetts special-education law. The rulings in Dennis-Yarmouth, Foxborough, Somerset and Fall River and DESE, and Framingham and Natick and DESE demonstrate that while the BSEA has broad jurisdiction and its rulings have far-ranging impact, its authority and power are constrained. There is a clear limit to what relief Hearing Officers can order, what entities they may exert authority over, and what disputes they can resolve. The decisions in Maynard, Lexington and Minuteman, and others also reiterate the care with which the BSEA examines the claims not only of pro se Parents, but also of Parents who do not even participate in the BSEA hearing. Last, the filings of hearing requests subsequent to previous BSEA decisions dispels the notion that pursuing a matter all the way through a BSEA hearing will settle a matter once and for all. In reality, as demonstrated in Dracut and Foxborough, litigation can beget further litigation. We also comment on two pieces of potentially significant state legislation, the Massachusetts Anti-Bullying Law and the realignment of the BSEA from the Department of Elementary and Secondary Education ("DESE") to the Division of Administrative Law Appeals ("DALA").

Parameters of the BSEA's authority

We often speak about the broad power of the BSEA because of its jurisdiction over any dispute arising out of the provision of special-education services in Massachusetts. Even certain tort and civil-rights claims for damages must first go through the BSEA under the legal principle of "exhaustion" of administrative remedies, despite the BSEA's inability to award monetary damages. While Hearing Officers' decisions significantly impact school districts as well as students and their families, several cases remind us that the BSEA is an agency of limited authority. In Dennis-Yarmouth Regional School District, BSEA #10-4763, 16 MSER 204 (2010), the school district sought to join two state agencies, the Department of Developmental Services ("DDS") and the Department of Children and Families ("DCF"). The Student in question was non-ambulatory and had significant disabilities, including a progressive neurological disease, seizure disorder, and chronic respiratory failure. In addition, he had a history of aggression and violence. After residing in a series of hospitals and nursing homes, the Student was placed residentially at Franciscan Children's Hospital ("Franciscan"). At the time of the hearing on the motion to join DCF and DDS, there was no dispute that Franciscan was no longer an appropriate placement, that the Student could not live alone safely, and that he could not live with his adoptive Parents. Dennis-Yarmouth refused to provide a residential placement. Therefore, the Student was "stuck" in an inappropriate and possibly harmful placement. The Student's guardian had filed the hearing request seeking a determination that Dennis-Yarmouth was responsible for providing residential services. Dennis-Yarmouth took the position that any need for residential services arose not out of the Student's educational needs, but from his medical needs and his need for housing. Dennis-Yarmouth moved to join DDS and DCF, a motion the guardian supported. The statute addressing the jurisdiction of a BSEA Hearing Officer over state agencies such as DCF and DDS, MGL c.71B, §3, 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 be able to access or benefit from the school district's special-education program only 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 act only in accordance with that human-services agency's rules, regulations, and policies. Concerning DDS, the 20-year-old Student was eligible for and already receiving some services from DDS. DDS argued that its own regulations state that DDS does not provide residential services to 18-to-22-year-olds if the individual is eligible for residential services from a school district; 115 CMR 6.07(2)(b). However, the Hearing Officer reasoned that if he ultimately found that Dennis-Yarmouth was not responsible for residential services, nothing in DDS's own regulations would bar the Hearing Officer from ordering DDS to provide them. In contrast, the Hearing Officer found it highly unlikely that DCF could be required to provide residential services even if Dennis-Yarmouth were found not responsible for residential placement. The Student was not under the care or custody of DCF and was not an active client. And given that the Student was already 20 years old, it was unlikely that he would become a client in the future. Therefore, the Hearing Officer allowed the joinder of DDS, but not DCF. The Hearing Officer in Foxborough Public Schools, BSEA #10-6287, 16 MSER 214 (2010), felt free to determine the stay-put rights emanating from a prior BSEA decision but not to interpret or enforce a Resolution Agreement. The parties had a long history of conflict that at one point led to a 2006 BSEA hearing and decision. One component of that decision was that the Student be provided special-education summer programming. Over the course of the subsequent years and various school districts following the family's relocations, numerous IEPs were proposed and partially rejected. In May 2009, the Parent filed a hearing request. Shortly after that filing, and pursuant to the requirement of IDEA 2004, the Parent and Westwood had a Resolution Meeting. The resulting Resolution Agreement addressed summer 2009 services and contained a waiver of stay put. More IEPs and partial rejections ensued. In the instant matter, Foxborough asserted that the Student was not entitled to stay-put for summer services because the Parent had waived stay-put claims in the 2009 Resolution Agreement. The Hearing Officer held that the Parent had consistently maintained that she was invoking stay-put rights for the summer services ordered in 2006 by the BSEA, and that she had never agreed to a different level of services in intervening IEPs. Therefore, the Student was entitled to stay-put rights for summer services. Foxborough countered that the summer services delineated in the Resolution Agreement became the new "last agreed upon summer services" and this, coupled with the waiver of stay-put rights in the Resolution Agreement, barred the Parent from continuing to invoke stay-put rights based upon the 2006 decision. The Hearing Officer noted that IDEA specifically allocated responsibility for the interpretation and enforcement of Resolution Agreements to either state or federal courts or the state educational authority (SEA) or SEA designee. Since neither the Massachusetts DESE nor the Legislature had empowered the BSEA to interpret or enforce Resolution Agreements, the Hearing Officer could not enforce or interpret that agreement. The decision is illustrative of the restraint shown by Hearing Officers in exerting their authority. It is also unfortunate, as the BSEA is the logical forum for resolving such disputes and the most accessible to families. The Hearing Officer felt similarly constrained in Somerset Public Schools and Fall River Public Schools and DESE, BSEA #10-5775, 16 MSER 199 (2010). There, Somerset sought to challenge the DESE's assignment of school-district programmatic and fiscal responsibility for a Student. DCF had temporary custody of the Student and had placed her in a temporary foster home. DCF claimed homeless status for the Student pursuant to the federal McKinney-Vento Homeless Education Act, 42 USC §11431, et seq. Pursuant to this federal law, homeless students have the right to attend either the school they attended before becoming homeless or a school within the district in which they are temporarily living. The law also establishes a dispute-resolution mechanism for a challenge by a school district of the enrollment rights of a purportedly homeless student. This challenge involved an appeal to the DESE Commissioner. The Commissioner's written decision is final. Therefore, the Hearing Officer ruled that she had no authority to "second guess" or undo such a DESE determination. The Student in Dracut Public Schools, BSEA #08-5330c, 16 MSER 203 (2010), sought an order from the BSEA for a referral to the DESE for enforcement of certain portions of the decision in the earlier Dracut Public Schools, 15 MSER 78 (2009). Massachusetts regulations (603 CMR 28.08(6)(b)) and BSEA rules (BSEA Hearing Rule XV) provide that a Hearing Officer, upon finding noncompliance, may refer the matter to the DESE Legal Office. This Student alleged that Dracut failed to comply with certain parts of the earlier ruling, including failing to provide certain transition services or have the ordered consultation with identified consultants. The Hearing Officer found that he had authority to refer to the DESE Legal Office for enforcement only after making a determination of noncompliance. Therefore, the Hearing Officer refused to make the referral at that time. In contrast, the Hearing Officer in Framingham Public Schools and DESE and Natick Public Schools, BSEA #10-4756, 16 MSER 195 (2010), resolved a dispute about whether DESE's assignment of fiscal responsibility between the two school districts was proper. At the crux of the issue was the date on which the family actually moved from Framingham to Natick. Specifically, the dispute was over whether the family had moved to Natick on or before the "magic date" of April 1, 2009. If it was on April 1, 2009, Framingham would be responsible under the Massachusetts "move-in law" (MGL c.71B, §5) for the cost of Student's private placement through June 30, 2010. DESE assigned fiscal responsibility to Framingham when it determined that the family moved into Natick on April 1, 2009. The Hearing Officer noted that 603 CMR 28.10 specifically authorizes the BSEA to decide appeals of such DESE determinations. The Hearing Officer relied on such evidence as the lease, which commenced on April 1, 2009, to affirm the DESE ruling.

Undue deference to the school district?

The dispute in Xenon Public Schools, BSEA #09-7928, 16 MSER 178 (2010), was essentially over the appropriate reading methodology for this Student. The school district recommended a highly structured, sequential, rules-based methodology such as the Wilson Reading Program. The Parents advocated for an alternate reading program, Reading Recovery. The 10-year-old Student was diagnosed with a communication disorder and a specific learning disability in the area of reading. The dispute between the school district and the Parents implicated two areas where school districts have traditionally been given extensive latitude and deference—the selection of teaching methodology and of service providers. After disagreements and a confrontation between Parents and the teacher who was providing specialized reading instruction, the Parents withdrew their consent to have that teacher instruct the Student, and objected to the failure to employ Reading Recovery. Further, they sought reimbursement for Reading Recovery tutoring. Although the Hearing Officer stated that the choices of methodologies and personnel are within the school district's purview, the fact that the Hearing Officer did not simply leave it at that demonstrates that Parents have a right to argue a case for a particular methodology. We have seen Parents prevail in their insistence, for example, that Applied Behavior Analysis ("ABA") therapy be provided to children with autism-spectrum disorders. Similarly, when a family can establish the necessity of certain qualifications or experience of a service provider, they may successfully challenge the school district's personnel assignment. In the instant case, however, several factors doomed the Parents' challenge. The Parents' expert, while an experienced reading instructor, was not certified in rules-based methodologies such as Wilson and Orton-Gillingham and therefore was unqualified to attack the appropriateness of those programs. She also acknowledged the meaningful progress Student made with a rules-based reading program and that Reading Recovery was not necessarily appropriate for the Student going forward. Regarding personnel, the educator to whom the Parents had objected was highly qualified and experienced, and there was scant appreciable or credible evidence that she was anything but appropriate and effective. Therefore, while the door to the BSEA is open to a challenge to a district's methodologies or staffing, the evidence about the inappropriateness of either must be backed up by qualified experts and objective evidence.

We say it again: experts are key

The pro se Parent in Salem Public Schools, BSEA #10-6335, 16 MSER 143 (2010), sought a different school and paraprofessional to work with her daughter. The Student was a 13-year-old with autism-spectrum disorder, which impacted her ability to maintain focus and pick up social cues. Social pragmatics was a crucial aspect of the Student's program. Pursuant to a CHINS action in juvenile court, a guardian ad litem had been appointed for the Student. At hearing, Salem had various experts and service providers testify to the appropriateness of their program for Student and the appropriateness and qualifications of the paraprofessional working with Student. By contrast, the Parent's entire case rested on inconsistent reports by the Student about being bullied and mistreated in school. No experts testified for the Parent and even the guardian ad litem supported Salem's case. We are mindful of the difficulty in procuring qualified experts to evaluate and testify. However, it is a rare case that is successful without such expert support. One resource for such experts is the treating professionals working with the Student, who often have high credibility since their involvement with the Student often predates any litigation between the parties and thereby undercuts any claim that they are "hired guns." In the instant matter, the Mother testified that the Student received help from Girls, Inc., a social-service agency. There was no further information about what role Girls, Inc. played in Student's life or whether testimony from them would have assisted Parent's case. However, such potentially fertile ground should be explored for supporting expert opinions.

A pro se friendly forum

While families not represented by attorneys rarely prevail in hearings at the BSEA, the Hearing Officers deserve recognition for their efforts, extraordinary at times, to give a full and fair hearing to pro se litigants. Respect for pro se litigants is evident in two particular cases this quarter. In most legal proceedings, one side will automatically prevail if the other side fails to put on a case. Despite the fact that Parents declined to participate or even attend the hearing, the Hearing Officer in Maynard Public Schools, BSEA #10-6645, 16 MSER 206 (2010), nonetheless thoroughly analyzed and considered their position before rendering her decision. The Student had a complex medical history as well as a history of significant time living in homeless shelters and foster homes. The Parents repeatedly changed their position on the proposed IEP and behavior-support plan. They rejected services, accepted services, withdrew and re-enrolled Student in special education and, while initially consenting to the Student's three-year evaluation, subsequently withdrew that consent. Maynard filed a hearing request seeking a determination that its proposed IEP provided FAPE and seeking substitute consent for the three-year evaluation. The Hearing Officer analyzed the evidence presented in the form of testimony from a variety of well-qualified school personnel, school records, and the independent evaluations from a team at Children's Hospital. She found that the overwhelming and undisputed evidence demonstrated that Student had benefitted from the program that Maynard proposed he continue in, and therefore the proposed IEP provided FAPE. Concerning the attempt to override Parents' refusal of the three-year evaluation, the Hearing Officer applied the relevant Massachusetts and federal regulations (603 CMR 28.04 and 34 CFR 300.300) regarding evaluations and consent. While the law is clear that a school district is required to conduct re-evaluations every three years, that time period had not yet elapsed since Student had undergone some of the requested evaluations. Therefore, the school district's action could not rest solely upon its obligation to conduct three-year evaluations. The school district had to justify its request for the evaluations on regulations allowing sooner evaluations when necessary. Because the Student had significant disruptions to his program due to Parents' alternating acceptance and refusal of some or all of his services, the Hearing Officer found that certain specific evaluations were necessary. For example, while the Student had had a physical-therapy evaluation within three years and received physical therapy until March 2009, when the Parents withdrew their consent for physical therapy, an evaluation was necessary to determine the Student's current level of functioning and whether he currently needed physical-therapy services. There was also ample support that the Student needed an educational assessment to determine his current level of functioning because his academic progress has been inconsistent over the years, and the Children's Hospital evaluation raised the possibility of a learning disability that needed further exploration. The Hearing Officer rejected the request for consent for certain assessments—occupational-therapy, health, and home assessments—because there was no convincing evidence that the Student had unmet needs in those areas. Lastly, the school district sought "projective testing" and carried the burden of proof on this issue. The Hearing Officer denied the district's request, basing her determination on the fact that none of the school district's staff had experience or expertise in projective testing, and Maynard's testimony that the Student needed projective testing because Maynard "may be" looking at yet-unidentified emotional needs of the Student. This was unpersuasive given the admission that Student was functionally relatively well. Therefore, although the Parents did not participate in the hearing, the Hearing Officer still awarded the school district their desired relief only where it presented strong and convincing evidence for it. In Lexington Public Schools and Minuteman Regional Vocational Technical School, BSEA #09-0139, 16 MSER 151 (2010), the Hearing Officer ruled on motions to dismiss by the school districts and a motion to restore Parent's retroactive claims, as well as a motion to quash some subpoenas. Throughout her longstanding dispute and litigation with the school district, the Parent was represented by various attorneys and an advocate and at times acted pro se. After the matter at the BSEA had remained open for approximately a year and a half and numerous postponements had been granted to the Parent, the matter was advanced to a hearing. During the Friday afternoon and late on the Sunday evening prior to commencement of the hearing, voice messages were left by the Parent's doctor and advocate saying that the Parent could not go forward with the hearing for unspecified "medical reasons." Neither the advocate nor Parent appeared at the commencement of the hearing. The Hearing Officer attempted to call the Parent and advocate and then made several unsuccessful attempts to contact the Parent's doctor. The Hearing Officer therefore dismissed the Parent's retroactive claims with prejudice but declined to dismiss the prospective claims with prejudice. In support of the Parent's request to re-open those claims, Parent asserted that she had a disability (dyslexia) and submitted a letter to that effect from her treating doctor. This doctor stated that the Parent had various learning disabilities as well as ADHD, depression, and anxiety, and therefore the Parent, who possessed a very high intellect and was competent in other areas, had difficulty organizing material and processing written information. However, the Parent held a medical degree, was licensed to practice in Massachusetts, was on the faculty of Harvard Medical School, and testified as an expert witness in state courts. In addition, while unrepresented, Parent was able to file sophisticated memoranda. There was, further, a very real threat of significant prejudice to the school district and Minuteman Regional Vocation Technical School if further postponements were granted on the Parent's retroactive claims. The school district and school had expended significant resources readying for the hearing and were already prejudiced in presenting their case concerning retroactive claims since several school witnesses were no longer employed by the school or district and additional delays would further hamper their memories. The Parent had also demonstrated a pattern of requesting a hearing but requesting postponements when offered the opportunity to present her case. For all these reasons, the Hearing Officer refused to overturn her decision dismissing with prejudice the Parent's retroactive claims. The ruling demonstrates that the BSEA is extremely accommodating of pro se parents, but there is a limit to how accommodating it will be. The prospective claims of the Student were determined after a three-day hearing in Lexington Public Schools, 16 MSER 161 (2010). The Parent sought placement for the Student in a combined high-school/college program with a tutor and an aide funded by Lexington. At the time of the hearing, the Student was 17 years old and diagnosed with Asperger's Syndrome, ADHD, semantic, written-language, and social-pragmatic learning disabilities, and executive-functioning deficits. He attended the Lexington Public Schools until January 2007, when he withdrew from school pursuant to a home/hospital request. He then attended Minuteman Career and Technical High School ("Minuteman") from September 2007 to November 2008. He did not subsequently re-enroll in Lexington and did not attend any further secondary schooling. Parent had a neuropsychological evaluation of Student done in January 2009 that yielded an extensive report with myriad recommendations. That expert contemplated Student's dual high-school and college enrollment with a one-to-one aide to manage his academics as well as his social interactions. The Student thereafter took a class at the Harvard Extension School. Parent requested extensive accommodations and services, including "an aide in all settings." Later, the Parent noted that she wanted an aide even for Student's time spent "in pubs," to assist him with social interactions. Harvard responded by listing certain accommodations it would permit, such as additional time for exams and the permission to have a note taker, but refusing to provide supportive services and other accommodations. Student testified that he spent up to 60 hours per week working on his physics class, much of it with one-to-one assistance from Student's father or private tutor. Parent sought Lexington's funding and support for Student's placement in a college program. Lexington offered various experts to support their position that the Student needed to be placed in a therapeutic day program to address his social and emotional needs. These experts were experienced educators who testified that Student needed to be reintegrated into an appropriate academic setting and that setting must be in a therapeutic milieu at the high-school level. Lexington proposed placement in Pathways Academy. The Student testified at the hearing that he would try Pathways if ordered, as long as it did not interfere with his physics class. All the witnesses, even Parent's independent expert, testified that the Student had great deficits in social pragmatics, was immature for his age, and lacked the social/emotional independence required for adult functioning. Parent admitted that she contemplated Student's needing an "aide for life." It was clear that in order for Student to participate in a college program he would be dependent upon a one-to-one aide, which would not help him progress in social pragmatics, his greatest deficit. For this Student to receive all of his instruction in an essentially one-to-one format posed two insurmountable issues for the Hearing Officer. First, such a setting was overly restrictive and therefore would be a denial of FAPE, since it would not be the least-restrictive setting. Second, it would not help him make effective progress in his social pragmatic skills. Allowing him to "skip over" the essential skills he needed to glean from a secondary-school environment would most likely doom him from ever acquiring those essential skills. Parent's experts failed to effectively attack the appropriateness of Pathways, and none of them had observed the Student in a secondary-school placement or had observed Pathways. Practitioners looking for support for cases where the social/emotional development of a student should take precedence over the academics can find support in this decision. The Hearing Officer ordered placement at Pathways if Pathways still had an opening for him. If not, Lexington was to locate a similar program.

Challenging the District's action in a school-discipline case

It has become well-established that the BSEA is amenable to reviewing disciplinary actions taken by school districts. In Medford Public Schools, BSEA #10-6258, 16 MSER 191 (2010), the Hearing Officer examined the finding of no manifestation in Medford's disciplinary proceedings as well as the appropriateness of the Interim Alternative Education Setting ("IAES") proposed by Medford. The Student was 17 years old at the time of the hearing and had mild learning disabilities in language-related functions and executive functioning. During the 2008–2009 school year he was involved in numerous incidents for which he was disciplined. In March 2009, Medford proposed placement at the Curtis-Tufts School, an alternative school that provides high teacher/student ratios and emphasizes the generalization of appropriate behavioral skills. Parent rejected this placement, and for most of the academic year the Student was absent from school for medical treatment. Student was charged with a felony and Medford found no nexus between the felony charge and Student's disability and excluded him from Medford High School pending resolution of the felony charge pursuant to MGL c.71, s.37H½. Medford offered again to place him at Curtis-Tufts School. Parent refused and the Student instead received home-based tutoring for the remainder of the academic year. Parent thereafter accepted placement in Curtis-Tufts and Student attended there from September until mid-December 2009. By all accounts, Student did well at Curtis-Tufts. After the pending felony charges were dismissed, in mid-December 2009, Student returned to Medford High School. At Medford High, he was accused of numerous disciplinary-code violations and accumulated nine out-of-school suspensions by March 30, 2010. The Student was also charged with another felony, breaking and entering a vehicle and resisting arrest. Medford conducted a manifestation determination on March 31, 2010, to determine whether there was a direct and substantial connection between the Student's identified disabilities and the offending behavior. While the Parent contended that Student's behaviors in and out of school were a direct result of the impulsivity associated with his ADHD, poor language processing, and executive-functioning deficits, the Student himself stated at the manifestation determination that he understood the rules as well as the consequences of breaking them. He stated that he engaged in the prohibited activities because he thought he would not get caught. The Team determined that there was no substantial connection between the Student's disabilities and the offending behaviors. Subsequently the school principal excluded Student from the high school because of the pending felony charge. The Student re-entered Curtis-Tufts. This finding of no manifestation was reviewed in the BSEA hearing and supplemented by testimony from Student's teachers and adjustment counselors that Student was able to conform his behavior to appropriate expectations and that much of the offending behavior was not the result of impulsivity, but rather the product of careful planning. The Parents relied on the testimony of Student's psychologist, who opined that there was a nexus between the Student's in-school misbehavior and his substantial executive-functioning disability. The Hearing Officer accorded little weight to the psychologist's opinion for various reasons, including that although he had seen Student in 2009, there was a long gap where he did not see Student; there was no evaluative data of a substantial executive-functioning disability; he did not conduct a neuropsychological evaluation; and he failed to review the record of the incidents or the Student's IEP. Again, we are sensitive to the fact that pro se parents with limited resources cannot not always assemble an extensive team of qualified experts to support their case. However, several things could have been done in this instance to buttress this expert's opinion without significant effort. The Hearing Officer found that Medford had properly followed the disciplinary procedures and the IAES at Curtis-Tufts was appropriate.

Challenging the impartiality of the assigned Hearing Officer

The Parents in Scituate Public Schools, BSEA #10-6419, 16 MSER 141 (2010), moved to recuse the Hearing Officer assigned to their case. The basis for the request was that the Hearing Officer and the school's district attorney appeared to be friends, based upon their cordial interaction with each other and their appearance on a Massachusetts Continuing Legal Education ("MCLE") seminar faculty together. The form of the request was a letter to the director of the BSEA. Following appropriate procedure, the director forwarded the letter to the Hearing Officer, who scrupulously analyzed the applicable law and regulations and applied them to the instant motion. The Hearing Officer asserted that she had no personal friendship with Scituate's attorney and that she maintains a cordial and professional rapport with the relatively discrete number of school and parent-side attorneys who regularly practice before the BSEA. Concerning the MCLE faculty, many members of the bar appear on such panels, often with Hearing Officers and judges, and such public service in advancing the professional education of the bar does not undermine the impartiality of judges or Hearing Officers. The Hearing Officer denied the motion for recusal, stating that "beyond a shadow of a doubt" she had no bias in the matter. The decision is instructive about the interaction between attorneys and BSEA Hearing Officers, as well as to the procedure and standards that apply in motions to recuse.

Lack of progress or even regression is not enough to establish inadequacy of a District's program

The Hearing Officer in a 38-page decision painstakingly addressed numerous compensatory- and prospective-services claims in Longmeadow Public School, BSEA #08-0673, 16 MSER 217 (2010). The 14-year-old Student in this case was severely physically disabled as a result of spastic quadriplegia cerebral palsy. Despite intensive services, the Student had regressed or made no progress in communication and important physical capabilities. The Parents sought compensatory services and maintenance of Student's current placement with the addition of certain therapies. Longmeadow conceded that certain related services were not provided and should be made up, but sought to change Student's placement to Lower Pioneer Valley Educational Collaborative (LPVEC). The decision was a mixed one for the parties, with Longmeadow generally prevailing on the appropriateness of its IEPs and the Parents prevailing on their desire to maintain the current placement and the need for compensatory services. The matter was originally filed in 2007 with the Parents' hearing request. Along the path to hearing, the parties agreed to stand down while evaluations were being conducted and in 2008 entered into a "Preliminary Interim Agreement" while awaiting an evaluation from Franciscan Children's Hospital. Concerning the appropriateness of past IEPs, the Hearing Officer took note of the general and well-established rule that acceptance of an IEP precludes the Hearing Officer from considering its appropriateness. Exceptions, such as lack of informed consent on the part of the Parents, was not present in the instant case. Therefore the Parents were barred from complaining that the contents of the accepted IEPs were inappropriate. Parents were free to dispute the appropriateness of rejected portions of the IEPs, such as for occupational services. However, here the Parents failed to establish the inappropriateness of the rejected portions of the IEPs. Concerning to all parties was Student's uncontroverted regression and lack of progress in certain areas such as speech and language as well as gross- and fine-motor skills. While establishing such regression is typically the knockout blow in a challenge to the appropriateness of a school district's program, here it was not sufficient. Here the Student's regression or lack of progress may very well have been attributable not to any deficiency in the district's services but to Student's physical growth and attendant greater difficulty with certain abilities, such as motor tasks. Parents did not present expert or other meaningful evidence linking the regression or lack of progress to inadequate services or proving that alternative therapies or services would have allowed the Student to make greater progress. The experts who did testify were not qualified to opine about those areas, and experts who may have those qualifications were heard only through brief opinion letters and not testimony. One of the principal things sought by Parents was reimbursement for, and prospective provision of, "conductive therapy" to the Student. Conductive therapy is an educational or therapeutic approach relying heavily on traditional therapies, such as physical and speech therapies, to facilitate the Student's movement patterns and weight-bearing. Student had received conductive therapy at various times in his life, which Parents maintained was beneficial. However, no conductive-therapy expert testified and there was no evaluation or written report recommending it. Therefore, Parents did not meet their burden of proving that Longmeadow should have offered to provide it in the past or future. Concerning the disputed issue of prospective placement, the Hearing Officer ruled in favor of the Parents by maintaining the current placement. The primary reason for this was uncertainty about the Student's true cognitive abilities, given the conflicting evidence and lack of any reliable cognitive testing of the Student. Therefore, moving the Student to LPVEC, with a comparatively lower cognitive level of its students, might negatively impact the Student, and Longmeadow did not meet its burden in justifying the change. The Hearing Officer put the matter back on the Team to validly assess the Student's cognitive profile and locate an appropriate placement. In determining the various amounts of compensatory services owed, the Hearing Officer thoroughly analyzed the evidence to determine what amounts, even to the half-hour, of compensatory services were owed in areas such as speech, physical therapy, and occupational therapy. Reiterating that the award of compensatory services is "an equitable, discretionary remedy that may be ordered after consideration of all of the circumstances" the purpose of which is to make the Student whole, the Hearing Officer declined to compensate for Longmeadow's undisputed failure to provide a one-to-one aide, when it had provided, under no obligation to do so, a one-to-one special-education teacher. The Hearing Officer lamented in his decision that three years of litigation had not appeared to provide any greater insight into the Student's needs or how best to address them. He strongly encouraged the parties to work together to obtain appropriate assessments and fashion a program around it. * * *

Massachusetts enacts an anti-bullying law.

As a result of the publicity surrounding a particularly egregious instance of bullying that may have driven one high-school student to suicide, Massachusetts recently enacted an anti-bullying statute. But because the public and media attention resulted in pressure to pass such a law swiftly, criticism has subsequently been leveled that the law went too far as well as not far enough. Families and the education community are closely watching the effectiveness and impact of this law. "Bullying" is defined broadly as the repeated use by one or more persons of a written, verbal, or electronic expression, or a physical act or gesture, or any combination thereof, directed at a victim that (i) causes physical or emotional harm to the victim or damage to victim's property, (ii) places the victim in reasonable fear of harm to himself or of damage to his property, (iii) creates a hostile environment at school for the victim, (iv) infringes on the rights of the victim at school, or (v) materially and substantially disrupts the education process or the orderly operation of a school. "Bullying" also includes cyber-bullying. The statute prohibits bullying not only at school and school-sponsored activities and functions, but also beyond if the bullying creates a hostile environment at school for the victim or infringes on his/her rights at school or is otherwise disruptive of the school. In addition, the statute imposes obligations on schools to (i) provide instruction on bullying-prevention in each grade, (ii) develop and adhere to a plan to address bullying-prevention and intervention, (iii) provide professional development in these areas, (iv) annually provide written materials regarding bullying policies to students and parents, (v) have personnel report incidents of bullying to the principal or designated person, and (vi) inform the parents of both the victim and the perpetrator of any instances of bullying. Concerning a child with special needs whose disability affects his/her social-skills development or makes him/her vulnerable to bullying, the Team is required to include in the IEP skills and proficiencies needed to avoid and respond to bullying. The statute states: "Nothing in this section shall supersede or replace existing rights or remedies under any other general or specific law, nor shall this section create a private right of action." It is uncertain what enforcement will be available to ensure that schools implement the requirements of this statute and of any regulations that follow. We hope the DESE take all appropriate steps to ensure that schools reduce the pervasiveness of—and the harm done by—bullying. * * *

The BSEA moves to DALA

Robert K. Crabtree, Esq. As of July 1, 2010, the Bureau of Special Education Appeals officially moved from under the Department of Elementary and Secondary Education ("DESE") to the agency known as the Division of Administrative Law Appeals ("DALA"). At this point the transition is administrative only; the BSEA will continue to occupy offices in the DESE building in Malden until/unless other space is secured for its operations. Thanks to the efforts of special-education stakeholders—parents, advocates, and school-district representatives alike—this move is taking place with a minimum of disruption and in a way that should preserve the integrity and continuity of an agency that has built a reputation as one of the most professional administrative due-process systems in the country. The legislation establishing the BSEA's new legal home was enacted as an outside section of the budget for the new fiscal year. That provision completed a process that began in the fall of 2008, when the then-new Commissioner of Education, Mitchell Chester, addressed a letter to the U.S. Secretary of Education in which he questioned the legality under IDEA of having due-process Hearing Officers and mediators serve as employees of DESE. The Commissioner's letter came as a surprise to many in the special-education community, as the BSEA had carried out its operations "in but not of the Department" for some 34 years without any issues arising that called the BSEA's independence into question. A challenge had been raised in the early years by the federal Office for Special Education Programs ("OSEP") about the BSEA's location under the auspices of the Department, but that challenge had been resolved by establishing a system of supervision by an agency outside the Department—an office at the University of Massachusetts. The Commissioner's letter suggested that the protocol for supervision by UMass personnel had fallen into disuse and that a more comprehensive systemic change was likely needed in order to ensure the independence of the agency. OSEP responded to the Commissioner's letter by agreeing that a change needed to be made, leaving it up to the state to determine what shape the change should take. Parents, school districts, and attorneys on both sides of BSEA cases raised concerns at that juncture that Massachusetts might go the way of the many states that employ revolving panels of part-time Hearing Officers to decide cases arising under IDEA (states that included Ohio, where the Commissioner had worked before coming to Massachusetts). The idea of turning from a group of highly experienced Hearing Officers in an agency that had developed a deep reservoir of precedents to a list of private attorneys contracting to provide part-time attention to special-education disputes was troubling to all those who regularly work in special-education advocacy. DESE responded by engaging a consultant, Perry Zirkel, Ph.D., J.D, a professor of education and law at Lehigh University who had written extensively on special-education law and process, to review the history of the BSEA in Massachusetts, to interview stakeholders, and to report with an analysis of the structural options available to provide a new home for the hearing and mediation functions of the BSEA. After discussions with many individuals representing school systems and parent-advocacy groups, attorneys for schools and for parents, and other key individuals in the special-education system, Dr. Zirkel noted that the BSEA is a highly professional adjudicative agency that carries out its functions competently within a state that provides an unusually sophisticated context for special-education issues.

Regarding the state history and context in this area, he noted:

"Massachusetts has played a leading role in the history of special education law. Its own positive (i.e., disability-favorable) education legislation pre-dated the passage of the original 1975 version of the IDEA. Moreover, for several years the legislation included a definition of eligibility and a substantive standard for appropriateness that clearly exceed the scope and substantive standard under the IDEA. Finally, Massachusetts's prevailing policies for procedural protections, such as the current BSEA practice of processing procedural safeguards notices as an automatic consequence of every parentally rejected individual education program (IEP), are relatively remarkable in comparison to most states. "As another, less central indicator of its relatively unusual level of sophistication in special education law, Massachusetts is the only state known to the consultant that has a specialized publication specific to its Hearing Officer decisions—specifically, the Massachusetts Special Education Reporter, a privately published service that features "commentators" from two law firms—one representing school districts and one representing parents."

Regarding the BSEA itself, Dr. Zirkel noted:

"Massachusetts's mediation and Hearing Officer system under the IDEA has a well-earned reputation for sophistication and innovation. Examples of legal sophistication include the following:

• the jurisdictional coverage of disputes under the overlapping scope of Section 504 of the Rehabilitation Act;
• the formal adjudicative procedures for addressing pre-hearing and interlocutory issues in hearings;
• the generally thorough factual findings and legal analysis of the Hearing Officer decisions;
• the well-regarded effective settlement conferences;
• the availability of advisory opinions;
• the development of the new "SPED-EX" procedure, which will provide the availability of an advisory opinion based on the perspective of a special education clinical professional."

The implications of Dr. Zirkel's overview were clear (though he did not explicitly recommend one solution over another): that the BSEA, its Hearing Officers, and its mediators constituted a system that was well worth preserving. He noted that while the alternative of part-time Hearing Officers might offer some "control" and "flexibility," the contractor option posed "less likelihood for expertise, independence, and stability." Following Dr. Zirkel's report, DESE zeroed in on the Division of Administrative Law Appeals as the most likely viable option to house the BSEA. (There was discussion of UMass-Boston as a possible alternative, but apparently little interest in pursuing it compared to DALA.) DALA's Hearing Officers adjudicate disputes arising out of the work of a wide array of state agencies, and DALA thus offered a ready-made infrastructure to support the kinds of activities endemic to the BSEA's operation. Advocates' concerns about the DALA solution focused on DALA's well-publicized backlog of unresolved appeals and the need to ensure that BSEA Hearing Officers were insulated against being drawn into helping solve that backlog problem. They also wanted to ensure that Hearing Officers deciding special-education cases would have the experience and knowledge necessary to do so competently. These concerns were resolved in the legislation by providing for a virtual "firewall" around the BSEA within DALA, restricting BSEA Hearing Officers to hearing BSEA cases, limiting the use of non-BSEA Hearing Officers to time-limited emergency circumstances when caseloads and understaffing of the BSEA require temporary assignments and requiring that any non-BSEA Hearing Officers in those unusual circumstances meet the same standards and qualifications as required for permanent BSEA Hearing Officers. In an interesting new development, the BSEA to DALA legislation also provided for the creation of an advisory council to provide oversight and advice to DALA and the BSEA regarding its performance, including such things as the range and types of alternative dispute-resolution mechanisms, mechanisms for training, mechanisms for improving access for pro se parents and non–English-speaking families, and "mechanisms to ensure that the bureau is appropriately maintained and operated both as a separate subdivision of the division and independent of the department." Members of this BSEA Advisory Council will be appointed by a spectrum of representative parent and school-side agencies and by the President of the Senate and Speaker of the House of Representatives. Advocates owe a debt of gratitude to the Massachusetts Advocates for Children and particularly to Julia Landau, who coordinated efforts throughout the process leading to this legislation to ensure that the BSEA's integrity and professionalism would be protected. Governor Patrick's office played a critical role in helping parties resolve their concerns and differences at some key points when discussions seemed stymied. Above all, in the political realm, advocates should note that a coalition of Representatives and Senators who regularly work to advance the interests of children with disabilities were instrumental in bringing about the very promising resolution of this complex process. Special thanks go to Rep. Martha Walz, the House Chairperson of the Education Committee, who dedicated hours of her time and considerable intelligence to the work of shaping viable solutions to the many difficult problems that emerged in this process.

Commentary on Massachusetts Special Education Decisions: 1st Quarter, 2010, by Robert K. Crabtree

January 03, 2010

Introduction

Included among the first quarter’s decisions for 2010 we find: parents thwarted in efforts to obtain public payment for independent evaluations (Concord) and limited in access to evaluators who charge more than the publicly approved rates (Hudson); findings of some relatively serious procedural violations by districts without any remedies ordered (parts of Sutton and Hingham); the affirmation of an IEP’s preemption of a placement proposal where the placement cannot implement the IEP (another part of Sutton); a template for obtaining an outside language-based placement (Arlington); a cautionary example of the types of elements that might or might not support a residential placement (Taunton); a somewhat esoteric discussion of whether FAPE turns on a child’s age or grade placement (Shrewsbury); and a post– high-school placement case with implications for both the substance of a transitional-services program and a district’s obligation to provide useful information to a Parent about its offering (Natick).

District’s evaluation with warts still “comprehensive and appropriate”; no funding for an IEE

In Concord Public Schools, BSEA #10-2961, 16 MSER 1 (2010), the district initiated a BSEA proceeding under 603 CMR §28.04(5)(d) rather than agree to fund an independent educational evaluation requested by the Parents. The district’s burden under that regulation and IDEA was to prove that its own evaluation of a Student’s educational skills and needs was both “comprehensive” and “appropriate.” The Hearing Officer found for the district, despite noting that the evaluator had made some careless errors in reporting scores. In the case of some of those errors, the Hearing Officer concluded that they made no ultimate difference in the interpretation of the Student’s skill levels—no harm, no foul. Regarding an error that yielded a significantly higher percentile rank than was warranted, he concluded that it was enough for the evaluator—who was also the Student’s special-education teacher—to testify that she would not have administered additional tests to further explore the skill area in question because the Student’s overall classroom performance gave no reason for alarm. The Hearing Officer also noted that the Parents’ own expert witness indicated that she would not have performed additional testing in the area in question if the score had been correct. (As with any other key argument with which Parents wish to persuade a Hearing Officer, they’d better make sure their expert witnesses will support that argument!) The Hearing Officer concluded that “in order to be comprehensive, [an] evaluation need not be perfect and certainly need not include every possible test.” The Parents also argued that the Student’s performance on a writing assignment in class while the evaluator was observing was below par and thus should call into question the appropriateness of the evaluation that had found the Student’s writing to be at the average level, but the Hearing Officer noted that the Student had not actually been engaged in a writing assignment but in a brainstorming exercise and that the performance was thus not relevant to the question of the appropriateness of the evaluator’s testing. Further, the Parents argued that later testing by a Lindamood- Bell specialist, showing “a significant drop in Student’s writing test scores” as compared to the scores yielded by the district’s testing, called into question the objectivity of the district’s testing. In his recitation of this part of the history, the Hearing Officer noted that the Lindamood-Bell testing “included no interpretation of Student’s test scores, nor did the evaluator provide any specific recommendations.” Nor did the Lindamood-Bell evaluator testify. Expert testimony is critical in most cases before the BSEA, so if the Parents meant to rely on this later testing in their argument, they would have been well advised to bring the Lindamood-Bell tester to the hearing. As is usually the case, this district enjoyed the benefit of the deference that is generally given to school districts in litigation under IDEA, notwithstanding that it carried the burden of proof as the initiating party. Parents’ lack of support from their one expert who testified concerning a critical point in the matter—whether, with proper scoring and a significantly lower score, that expert would have administered any additional tests—undermined that argument, and the lack of any testimony at all from the Lindamood-Bell evaluator whose testing yielded significantly lower scores in key areas, much less a detailed explanation of the results, undermined the argument that the district’s testing was somehow lacking in objectivity. It is a difficult challenge for Parents to defend against a district’s effort to avoid paying for an independent evaluation, to say the least. The cost of an evaluation itself may not be much more than the cost of defending the district’s arguments regarding comprehensiveness and appropriateness of their testing. The case cannot generally be made without expert testimony, which represents a significant cost in itself, and the struggle to overcome the deference given to districts, amply illustrated in this case, tends to make the cost outweigh the potential benefit by a significant margin. Given these realities, not to mention the relatively low rates that a district must pay to an independent evaluator—far less, generally, for many of the more highly qualified private evaluators than their ordinary rate schedule—it is difficult to find much comfort in the Supreme Court’s observation in Schaffer v. Weast, 546 U.S. 49 (2005), to the effect that access to a “second expert opinion” helps to balance the playing field for Parents. Those who can afford to engage an independent evaluator will do so; however, those who cannot afford it (and whose income makes them ineligible for access to an evaluator on a sliding fee scale (see 603 CMR §28.04(5)(c)) and whose districts decide to contest their eligibility for funding face a steep and disproportionally expensive uphill battle.

Limits on payment for IEEs . . . again

Parents in Hudson Public Schools, 16 MSER 45 (2010), having obtained evaluations of their two children by a private evaluator at the cost of $3,100 per evaluation, tried to find a way around the state-set limits on what districts may pay for independent evaluations in the federal provisions that require funding of such independent evaluations “at no cost to the Parent.” (34 CFR §300.502.) The district argued that it could require the Parents to use evaluators who agree to abide by publicly set rates without violating those federal provisions. The federal regulations contain an additional provision precluding districts from setting conditions different from those that they impose on their own evaluations regarding such elements as the location and qualifications of an independent evaluator. Parents argued that this meant that districts could not require independent evaluators to abide by state-imposed rates. (See 34 CFR §300.502(e).) The Hearing Officer found the regulations ambiguous and noted that no judicial precedent had been found on the point. He turned, accordingly, to the federal Department of Education’s comments on its regulations to support his conclusion that a district may restrict evaluators to those who will accept state rates. There he cited the Department’s statement: “It is the Department’s longstanding position that public agencies should not be required to bear the cost of unreasonably expensive IEEs¼. Although it is appropriate for a public agency to establish reasonable cost containment criteria applicable to personnel used by the agency, as well as to personnel used by parents, a public agency would need to provide a parent the opportunity to demonstrate that unique circumstances justify selection of an evaluator whose fees fall outside the agency’s cost containment criteria.” 71 Fed. Reg. 156, at 46689-90 (Aug. 14, 2006). The Parents in Hudson did not attempt to argue that there were “unique circumstances” warranting the application of rates outside of those set by the state agency and, accordingly, the Hearing Officer dismissed their request for an order that their IEEs be paid at their higher rates. We have commented previously on the effects of the rate-setting limitations on parents’ access to experts. In sum, the allowed rates tend to be significantly lower than what many of the more experienced and qualified experts outside of hospital settings charge (and probably don’t cover the costs of performing competent evaluations in hospital settings either) and, pro bono work aside, those experts become effectively unavailable to parents without means; the practical ability of evaluators to combine forces and provide the rate-setting agency (the Division of Health Care Finance and Policy) with the necessary evidence to support a rate increase is limited—and for the more experienced and well known of the evaluators, there is little incentive to try, since parents who can afford to pay their rates will ignore the process for requesting district payment. (Moreover, in a fiscal climate like ours over recent years, the odds against rate-setting agencies approving increases are steep.) Hearing Officers typically look closely at the credentials, the experience, and the particular expertise of experts in assessing the credibility of their testimony, and they also want to hear from experts about their observations of programs—tasks that are often not counted in the costs that are reimbursable by districts. A system that limits parents without means to experts who accept public rates (and who often cannot afford to go the extra mile required to make a case—attending Team meetings, observing programs, etc.) tilts heavily against such parents. This, we think, is not what the framers of IDEA and its state counterparts intended.

A placement must be able to implement an IEP; procedural violations with and without remedies

At 23 pages, the lengthiest of this quarter’s decisions, Sutton Public Schools, 16 MSER 18 (2010), offers a number of interesting nuggets. The case represents the newest installment of a long-running parent/district battle over services and placement for a 13-year-old Student with severe and complex neurological disabilities including motor and verbal apraxia, auditory-processing deficits, and working-memory deficits. The Student’s disabilities substantially and pervasively undermine his development of self care, cognition, attention, emotional regulation, literacy, and expressive and receptive language skills. He has suffered significant delays in the development of the activities of daily living (ADL), including, quite significantly, toileting, while he has gradually become aware of the gaps in cognition and behavior that he suffers in comparison to his peers, leaving him feeling shamed and anxious. Diagnoses of anxiety disorder and features of obsessive/compulsive disorder have followed upon his struggles to learn and to cope with the daily, chronic, and pervasive difficulties of navigating his world. He has limited functional language, and the extent of his ability to use words turns in part on the level of his comfort with his environment. At the time of this decision, Parents had provided for several years a home-based program with several 1:1 specialists and tutors working intensively with the Student. Earlier clashes before the BSEA had led to orders favoring the school district (13 MSER 95 (2007) and 14 MSER 182 (2008)) regarding placement and procedural claims. This current decision yields a more complex result, however, with Parents prevailing in their claims regarding one IEP period—October 2007 to October 2008—and achieving a mixed result in their claims respecting the next period—October 2008 to October 2009. In brief, the Parents persuaded the Hearing Officer that Sutton’s proposed IEP for 2007–2008 was fatally flawed insofar as it called for a placement that clearly could not implement critical elements of the IEP. Sutton proposed placing the Student at the Cotting School, but the IEP included significant amounts of service on a 1:1 basis, and the evidence was clear that the Cotting School would not provide services on a 1:1 basis. The district tried to demonstrate that the Cotting School would have been able to provide sufficient services to meet the Student’s needs even without the 1:1 services that the IEP called for, but the Hearing Officer found that in light of the determination of the Team to include 1:1 services in the proposed IEP, the district could not then propose a program that omitted this key element. Based on this determination, and on findings that services that had been procured by the Parents within their home-based program during the period of the proposed 10/07 to 10/08 IEP were appropriate, the Hearing Officer ordered the district to pay for the Parent-provided services. In rendering this part of the decision, the Hearing Officer cited a number of federal and state regulatory provisions that emphasize that a placement decision must be made only after the Team determines the Student’s abilities and needs and develops the IEP to incorporate services to meet those needs. The placement decision is to be based on the Student’s IEP and no other factors. He cited not only the applicable regulations but also a helpful comment by the federal Department of Education appearing in the Federal Register, stating: “In all cases, placement decisions must be individually determined on the basis of each child’s abilities and needs and each child’s IEP, and not solely on factors such as category of disability, severity of disability, availability of special education and related services, configuration of the service delivery system, availability of space, or administrative convenience.” 71 Federal Register 156, at 46588 (August 14, 2006) (emphasis supplied by the Hearing Officer), cited at 16 MSER 28. (Practitioners would do well to mark this DOE comment for reference in the occasional argument over placement where non-IEP considerations seem to be driving a placement proposal.) For the 10/08 to 10/09 IEP period, the district had turned from proposing an outside program to offering an in-district, substantially separate program. In the second major part of the Sutton decision, the Hearing Officer ruled largely in favor of the district, finding that the district’s then-proposed in-district program would have provided FAPE, with the exception of a lack of sufficient services to address major ADL deficiencies. He ordered reimbursement of the Parents’ costs for privately procured services aimed at addressing those ADL needs, but declined to order reimbursement for other unilateral services in light of his finding in favor of the public school’s proposed in-house program. It appears from the discussion of this proposed in-district program that the pro se Parents allowed the testimony of the district’s service providers to tell the story of that program without introducing any expert observations or other examination of the underpinnings of that program. The Hearing Officer noted that the Parents “provided no probative evidence . . . with respect to the proposed classroom placement, academic portions of the IEP, and speech/language and physical therapy services.” It seems the Parents hoped to show that the program as a whole denied FAPE based on arguments about two types of service to be delivered within the program. They were successful in making that argument in one area only—ADL skills, which could be remedied by an order to provide those services—and failed to persuade the Hearing Officer that the other service they contested was inadequate—having to do with visual/motor deficits. In the latter case, the Hearing Officer declined to find that vision therapy could be delivered only through the model advocated by the Parents and ruled that the school’s proposed method was appropriate. Even if the Parents had succeeded in proving that both ADL and vision-therapy services were insufficient or inappropriate, it is highly unlikely that the basic in-district program would have been dismissed for those failings. The ADL skills that needed attention included most notably the Student’s lack of toileting skills at the age of 13. The district attempted to argue that the Parents’ provision of services in this area should not be reimbursed because at the time of the Team meeting the district was not made aware of the extent and seriousness of the Student’s need and it was therefore “reasonable” to have omitted services addressing his lack of toileting skills. In his rejection of this argument, however, the Hearing Officer looked at what the district should have known rather than merely what it did know at the time of its action. We are sometimes concerned that districts are given too much leeway in ignoring an obvious need (see, e.g., our discussion of the Hingham decision herein). This case provides a good example of the approach that should be applied, holding a school district accountable for what it should reasonably have known about Student’s need. The Hearing Officer zeroed in on evidence that Sutton knew, well before the Team meeting in October 2008, that the Student had not successfully learned toileting skills but took no steps to ascertain the seriousness of that problem and ignored information from the Parents and others attempting to call attention to the problem. The Hearing Officer was struck especially by the appearance in the October 2007 IEP of language indicating that information about the Student’s performance in the area of fine motor skills—the area that includes toileting skills, as the Hearing Officer noted—had been conveyed by reports of the Parents and an evaluator, that the information was incomplete, and that fine-motor performance levels would be updated when additional information was available. He then noted that the very same language appeared again in the October 2008 IEP, apparently with no formal steps having been taken to evaluate and further understand the Student’s performance levels and needs. Beyond that, shortly after the October 2008 Team meeting, the district heard more urgent information from the Parents and from a doctor concerning the Student’s toileting issues and the effect of that on his self-image, his comfort in various environments, and his availability for learning. The Hearing Officer commented, “[t]here is no evidence that Sutton obtained more recent, updated information regarding this issue until Sutton heard the testimony at the evidentiary hearing in the instant dispute.” Under such circumstances, he stated, “Sutton should have known the extent of Student’s toileting needs and how they should be addressed.” As this analysis reflects, practitioners should pay close attention to those points in a chronology where a district has information on the basis of which it ought to be digging in to find out about a Student’s particular needs and developing services. The reasonableness of an IEP is to be measured not only by what a district knew at the time the IEP was developed but also by what the district should have known. In one important respect, we believe that Sutton left logic behind. Parents complained that at the Team meeting for the 10/08–10/09 IEP, Sutton failed to include a special-education teacher, as required by IDEA. The Hearing Officer agreed, but ruled that the Parents were not entitled to relief because of this error. At this meeting Sutton was presenting to the Parents a major new initiative: where all previous discussion had revolved around outside-placement alternatives, Sutton had now developed a proposal for an in-district program. It neglected, however, to bring the person who would be primarily involved in implementing such a program to the Team meeting, and there was no waiver by the Parents of the requirement for her participation. The Hearing Officer stated: “The evidence indicates that without this person present during the October 2008 IEP Team meeting, Sutton did not, and presumably was not able to, have a meaningful discussion with Parents regarding the proposed classroom placement and the services and accommodations provided by the classroom special-education teacher. Without this discussion, it would have been impossible for Parents to participate fully or meaningfully in the IEP Team process of deciding Student’s services and placement. Thus, Sutton denied Parents the opportunity ‘to participate in meetings with respect to the identification, evaluation, and educational placement of the child.’” He went on to point out the critical importance of abiding by this kind of procedural requirement and noted that “interference with required parental participation is an actionable claim that, in and of itself, may be considered a denial of FAPE.” He also commented on the extent to which the Parents in this case had cooperated and zealously explored services and options that had arisen. But: he declined to order reimbursement for services the Parents had provided to the Student because, he noted, “Parents have never taken the position that an in-district placement could ever be made appropriate, regardless of what staffing, special-education and related services, and accommodations might be provided.” Whatever “position” the Parents may or may not have taken, this outcome seems to contradict and undermine the very purposes the Hearing Officer so eloquently cites behind the requirement for a special educator to attend a Team meeting. These are obviously intelligent Parents who take in and appreciate information of all kinds; even if that were not so, however, why assume that if the district had abided by the law the Parents would have simply refused to hear and explore what the special-education provider would have described or to participate in discussions about modifying that proposal to try to make it work? There are any number of paths that could have been taken by the parties had this occurred, from full acceptance of the in-district program to some modified participation in that program along with services outside of school. The decision to order no remedy for this material breach of the district’s obligations seems to render toothless the Parents’ critical right to participate in the central process of IDEA—the development of an IEP. If a Hearing Officer can guess at what a Parent might or might not have done if s/he were fully informed and engaged in the decision process and refuse to enforce that Parent’s right to meaningful participation based on that speculation, what remains of the right? Ironically, the right of which we speak is also treated as an obligation, making the Sutton ruling on this point even more problematic. The First Circuit, in a rather draconian decision in 2008, precluded Parents in a Maine community from seeking support for an outside placement because they’d left the Team meeting process and made a unilateral placement before the Team had actually designated a proposed placement. See, C.G. and B.S. v. Five Town Community School District, 513 F.3d 279 (1st Cir. 2008). They had done so because the special-education director had made it clear at the Team meeting that the district would never propose or support an outside placement for the Student in question and the Parents saw no point in remaining in the process where they believed that nothing short of a therapeutic residential placement could meet their daughter’s needs. The Court ruled against the Parents on the basis that they had failed to participate in the process—that they had abandoned it and acted before they knew exactly what the district would propose. Doesn’t the Sutton case represent the other side of that coin? If a district effectively withholds information that is germane to a service and placement determination by failing to have a key service provider attend the Team meeting to develop an IEP, why shouldn’t the district be rigorously held to the IDEA’s requirement of cooperation, information exchange, and mutual participation as Parents are? And if a due-process agency will not order a substantial remedy for what it acknowledges is a serious breach of procedure, what has happened to the assurance in Rowley that substantive procedural failures by school districts are of comparable consequence to programmatic failures that undermine a Student’s progress? On a relatively minor note, but one worth remarking on as a reminder to cover all bases when presenting evidence at a hearing: while the Hearing Officer did order reimbursement for some services delivered during the 10/07–10/08 IEP period, he refused to order reimbursement for the cost of the Student’s participation in a social-skills group provided by ICCD, an entity with expertise in autism, developmental disabilities, and other related areas. Testimony had been provided by the Student’s Parent about the purposes of the group and the benefits to the Student, but no ICCD representative and no other expert apparently provided evidence on these points. The Parents were thus found not to have carried their burden of proof in support of reimbursement. This seems an unfortunate lapse where telephonic testimony by an ICCD representative familiar with the program or testimony by another expert familiar with the Student’s needs in this area and the program’s approach could have carried the point.

Is less more?

Taunton Public Schools, 16 MSER 7 (2010), concerns a Parent’s appeal from the school district’s proposed placement of an adolescent with strong intelligence but a history, arising in adolescence, of serious emotional and behavioral issues, to the extent that he had come under DYS supervision, had been hospitalized extensively, and had blown out of a number of different placements, public and private. The Parent sought an order for a residential placement, but the Hearing Officer upheld the district’s proposal for a therapeutic day placement instead. The substantive lesson of Taunton seems to be that even for some students with very troubled histories and behavioral/emotional disabilities, including hospitalizations and criminal involvement, a Hearing Officer may find insufficient evidence to order a residential placement. In this case the Hearing Officer concluded on the basis of the record she was given that this Student behaved better and engaged more effectively in his educational program in a day setting than in 24-hour settings—be they schools or hospital environments. We wonder about the extent of the record, though, and note the lack of certain types of evidence that one would expect to find in any case that concerns the possibility of a residential therapeutic placement. The Parent had no experts to say that this Student must have 24-hour therapeutic services in order to make meaningful progress. In fact, the professionals who did speak to the issue supported the day-school alternative, most notably staff members of an alternative day therapeutic facility where the Student was assigned for a 45-day evaluation after having run from a residential facility where he had previously been sent for a 45-day evaluation. Parents can rarely hope to win an order for a more intensive placement and services without having competent, credible, and well-informed experts testifying in support of their position. The Parents in this case not only lacked such experts on their side, but were hobbled by the reticence of at least one key expert who might have been able to speak in the Student’s behalf if she believed he needed the 24-hour supports and teaching that the Parents sought. That expert was the Student’s primary treating psychiatrist during a three-month hospitalization. The doctor issued a number of reports with her clinical assessments and recommendations but avoided making any recommendations about what level of intervention or types and frequency of services might be required for the Student to engage in his education and/or to grow socially and emotionally. Instead, she recommended that the Parent seek the assistance of the Department of Child and Family Services. She testified at the BSEA hearing that “she generally does not make” recommendations regarding educational services or placements. Why not? Perhaps as a psychiatrist she felt it was outside her expertise to recommend educational interventions. But there are two areas very much within a psychiatrist’s, or any licensed therapist’s, expertise where her opinions and recommendations would have been on point and, depending on her opinions, may have been helpful to this Parent. First, having treated the Student over a three-month period, having formulated a diagnostic understanding of his needs and prospects, and having witnessed closely his daily interactions with others and the course of his progress in gaining (or not) the emotional and behavioral skills he needs in order to maintain stability and engage in academics, surely this psychiatrist could form an opinion on what services and what frequency of services are minimally necessary for the Student to make progress. Second, presumably this Student’s IEP would contain, above all, goals and objectives designed to help him make effective progress in gaining social and emotional growth. The applicable regulations define “progress effectively in the general education program”to mean “make documented growth in the acquisition of knowledge and skills, including social/emotional development.” One would think that this treating psychiatrist could—and should—have spoken up about what would be required for this Student to make significant gains in his “social/ emotional development.” A hands-off approach to recommendations that would assist the Student’s special-education Team to make intelligent decisions about services and placement draws an artificial line around the professional services this psychiatrist could provide on this Student’s behalf. Sometimes the standard professional reticence about proclaiming in areas that seem to be beyond the specific area of the professional’s expertise is misplaced. At least a professional should examine the underpinnings of what s/he is being asked to assess to see if it is really outside of his or her expertise or, rather, involves issues that are squarely within that expertise but hiding behind a deceptive label, such as “educational.” This problem was compounded by the lack of recommendations for placement and/or services from a neuropsychologist to whom the family had been referred by the same hospital for an evaluation. In addition to diagnosing a “generalized anxiety disorder” and “major depressive disorder,” this neuropsychologist apparently found evidence of a non-verbal learning disorder “leading to difficulty processing information from his environment and, particularly, in accurately perceiving emotionally charged interpersonal situations.” If this was so, then where were the neuropsychologist’s recommendations for this Student to learn appropriate social-navigation skills as well as improved coping and self-understanding and acceptance skills—which, presumably, have much to do with the Student’s ability to engage in his education, both academic and social/emotional? It is well known that persons with non-verbal learning disorders typically have great difficulty generalizing learning from one environment to another. Where were this neuropsychologist’s recommendations to ensure that this Student learns and masters social and emotional skills through practice and timely intervention across environments? These sorts of analyses may or may not have led either or both the psychiatrist and this neuropsychologist to conclude that Student would need a program addressing his needs during all waking hours in order to make meaningful progress in the urgent areas of his growth. But the Hearing Officer had no information from either of them to that end, and it is not surprising, therefore, that she ruled in favor of only a day placement.

Repeating kindergartener loses related services

Parents in Shrewsbury Public Schools, 16 MSER 60 (2010), requested that their child be held back for a second year of kindergarten rather than move on into first grade. The Student suffers from Marfan’s Syndrome, which “affects his eyes, skeleton, blood vessels, and connective tissue.” Shrewsbury acceded to that request, but then proposed that previously provided occupational and physical therapy services be dropped. The Hearing Officer in this case indicated in a footnote that “the special-education staff recommended that Student enter 1st grade. . . rather than repeat kindergarten, but retention is considered a regular-education decision.” Although that issue may not be central to this case, we wonder why retention could not be a reasonable accommodation to enable a child to access educational services despite his or her disability or a program or placement issue pursuant to IDEA. See, Boston Public Schools, BSEA #03-1154, 9 MSER 85 (2003) and 9 MSER 210 (2003), and Wachusett Regional School District, 9 MSER 172 (2003). Both cases noted that the BSEA has jurisdiction over promotion and retention disputes where the Parents state a FAPE issue in connection with the promotion/retention decision. In Wachusett, the Parent asserted that the Student needed to be retained in kindergarten specifically because of his disabilities, which consisted of developmental delays and a speech impairment. (We return to this point below) The ruling in Shrewsbury was issued on the basis of arguments made by the parties regarding the standard by which the Hearing Officer would measure the Student’s entitlement to the occupational and physical therapy services that Shrewsbury wished to terminate. The Parents argued that his entitlement to these services should be determined based on his chronological age, developmental expectations, and individual potential, while Shrewsbury insisted that his need for services should be based only on his ability to access and make progress within the kindergarten curriculum, regardless of his age and developmental potential. The Hearing Officer agreed with Shrewsbury. He did so basing his analysis primarily on First Circuit decisions arising from a Puerto Rico case (Gonzalez v. P.R. Dep’t. of Educ., 254 F. 3d 350 (1st Cir. 2001)) and a Maine case (Rome Sch. Comm. v. Mrs. B, 247 F. 3d 29 (1st Cir. 2001)), which he interpreted to mean the following: “in order to establish the right to a related service of counseling or behavioral services, for example, it is not sufficient to demonstrate that a Student has substantial emotional or behavioral deficits within the context of his or her chronological age, developmental expectations, and individual potential. It must always be shown that these deficits interfere with Student’s ability to learn. For these purposes, the term ‘learn’ or ‘learning’ refers not to learning better behavior or emotional responses, but rather, for example, learning from instruction in the classroom.” But neither of the First Circuit cases cited by the Hearing Officer squarely dealt with the question of whether a higher standard of protection or services than the threshold standards embedded in IDEA had been established within the local jurisdiction concerned in those cases, in which event the higher standard must be enforced as if it were part of IDEA for that jurisdiction. See, Mr. I. v. Maine School Admin. Dist. No. 55, 480 F. 3d 1 (1st Cir. 2007); Town of Burlington v. Dep’t. of Ed., 736 F. 2d 773 (1st Cir. 1984). Nor, we think, did this Hearing Officer deal squarely with whether a higher standard applies in Massachusetts. In the Mr. I,decision, the First Circuit held that IDEA requires attention to and services for a child whose needs are primarily social/behavioral, even when the Student’s academic performance is acceptable. Looking at Maine’s statutory definition of “educational performance,” the Court noted that it “squares with the broad purpose behind the IDEA: ‘to ensure that all children with disabilities have available to them a free and appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.’” The Court confirmed that the IDEA entitles qualifying students to services that “target ‘all of [their] special needs,’ whether they be academic, physical, emotional, or social.” The Court also confirmed that “extra instructional offerings such as social-skills and pragmatic-language instruction are ‘specially designed instruction’ to ensure [a qualifying Student’s] ‘access ... to the general curriculum.’” (Quoting 34 CFR § 300.39(b)(3)). The Court noted too that while “speech/language pathology services” can be classified as “related services,” 20 USC § 1401(26)(A), direct instruction in social skills and pragmatic language is also “specialized instruction” insofar as it adapts the content of the usual instruction to address a Student’s unique needs and is aimed to assist the Student to meet state educational standards. Recent BSEA decisions that have ordered ongoing non-academic (social/emotional/behavioral) services to older students who had passed MCAS and obtained the required course credits to qualify for a diploma also seem to support an emphasis on social/emotional development equal in force to the attention given to academic progress under IDEA. Dracut Public Schools, 15 MSER 78 (2009), appeal pending; Dracut School Committee v. Bureau of Special Education Appeals, Civil Action No. 09-cv-10966-PBS (D. Mass.); Marlborough Public Schools and Dearborn Academy, 15 MSER 113 (2009), appeal pending; Doe v. Marlborough Public Schools, Civil Action No. 09-cv-11118-WGY (D. Mass.). In the Shrewsbury decision, while the Hearing Officer alluded to the Massachusetts regulatory definition of “progress[ing] in the general education program,” he did not explicitly assess whether that definition and related provisions embody a higher standard of protection and services than the IDEA standard upheld in the Gonzalez and Rome decisions. Under 603 CMR §28.02(17), progress in the general-education program is defined as: “to make documented growth in the acquisition of knowledge and skills, including social/emotional development, within the general education program with or without accommodations, according to chronological age and developmental expectations, the individual educational potential of the Student, and the learning standards set forth in the Massachusetts Curriculum Frameworks and the curriculum of the district.” (Emphasis added.) Had he done so, we believe that the outcome might have been different in this case, since the language plainly does allow for services to address non-academic, developmental, social/emotional needs based on an assessment of a Student’s chronological age and developmental expectations and potential alongside attention to the academic needs. Would the outcome have been different, also, if the Parents had asked (and had sufficient expert evidence to convince) the Hearing Officer to find that retention in kindergarten was, for this Student, an accommodation or placement that was necessary for him to access his program of educational and related services due to his disability, as opposed to accepting Shrewsbury’s characterization of the decision as a discretionary administrative decision that was not recommended by the special-education staff? If the Student needed to repeat the grade because of his disability—say, because his disability prevented him from making adequate progress in the acquisition of social and behavioral skills—might that fact have made a difference?

“Trust us” is not enough to support a proposed program

Natick Public Schools, 16 MSER 47 (2010), offers a mixed result for a post–high-school Student who rejected a proposed in-town transition program in favor of participation in a residential transition program (“GROW”) operated by the Riverview School in Sandwich. The Hearing Officer found for the Student and his Parent with respect to his first post–high-school year and then found that some changes in the district’s program for the second year nudged that program back over the line into FAPE. There was no dispute that the Student needed ongoing special-education and related services following the completion of his high-school years, spent in a Life Skills program. He had enjoyed some genuine successes during those years but needed further academic instruction in reading and math, and further teaching and reinforcement addressing his lack of effective social/pragmatic, self-care, community-safety and travel skills. Moreover, little had been done during his high-school years to assess or develop his vocational interests and skills, and this area too needed focused attention and services. The district offered to place the Student in a new program (“ACHIEVE”) that it was developing while he was in his last year of high school. The Hearing Officer held that fledgling program to be deficient, however, stating two primary reasons. She noted first that the district had failed to provide the Parent with “a concrete, coherent description of how the embryonic ACHIEVE program was going to meet” the Student’s extensive needs. The district “provided Mother and Student with little more than a program name, the name of a lead teacher, a location, and the name of the published curriculum to be used [but] was persistently vague in demonstrating a link between Student’s unique needs and ACHIEVE.” Of the information that was available, she noted that the transitional plan offered to this Student was identical to those of every other Student in the group the district intended to enroll in the program. In the end, the decision clearly indicates that generalities, together with a vague invitation to trust the program, will not suffice when a district is proposing to serve a Student with complex needs in a brand new program. A district must at least be able to explain how its new program will actually address a Student’s needs. The Hearing Officer wrote that while the Parent “was not entitled to advance, detailed information about Student’s daily schedule, she was entitled to more information than she did receive regarding how scheduling determinations would be made so that IEP objectives could be met.” Second, she found that the size of the proposed group of Students was too small (only three other students) and too dissimilar to the Student’s own profile (two of the three were markedly more delayed than the Student in question) to make up an appropriate peer group for him to practice and generalize the peer skills that are priorities for his development. As noted above, the Hearing Officer was particularly struck by the fact that transitional plans for all the Students slated for the ACHIEVE program were identical and that the Student’s IEP did not specifically reflect detailed and focused transitional planning and implementation. As several decisions have begun to make clear (see, e.g., Dracut, Marlborough, and Quabbin, cited elsewhere in these Commentaries), the emphasis in IDEA on transitional planning and implementation is tied to the ultimate purposes of IDEA—to enable a Student to exit his public-school education—and, as such, deserves the full attention and commitment of the Student’s Team. We think it was a key to the outcome in Shrewsbury that the district exhibited far less than the required level of commitment and follow-through in its transitional planning for the Student in question. The Hearing Officer’s findings regarding the second school year at issue are somewhat befuddling. In essence it appears that she determined that the addition of several new peers, such that two of the whole group might be reasonably comparable to the Student, plus the addition of some courses in sex education and some social-skills instruction with a speech/language therapist turned what was inappropriate and insufficient into a legally acceptable offering. The decision includes a number of findings regarding the deficiencies in the first year’s program, but very little discussion of what it was in the second-year program that cured those deficiencies. This lack of analysis unfortunately leaves little guidance in place for districts and Parents to assess what will pass muster under IDEA for the growing numbers of post– high-school students whose primary needs lie in the areas of social, behavioral, vocational, and ADL deficits as well as of continuing deficits in the fundamental skills of literacy and basic math.

Shouldn’t they have known? And if they didn’t, shouldn’t they have been required to find out?

In Hingham Public Schools, 16 MSER 41 (2010), Parents had made unilateral placements at two out-of-state programs to address the volatile, unsafe, and oppositional behaviors of their adolescent son. Insurance paid for the earlier placements for a while, then Parents covered the cost until their funds ran out, at which point they sought an order that Hingham fund a residential placement. In an earlier decision, 15 MSER 292 (2009), the district had been ordered to place the Student prospectively at a residential school. Now, in this current phase of the proceeding, the Hearing Officer was asked to order retroactive reimbursement for the cost of the earlier placement. He denied this request on the ground that the district had not possessed information on which to conclude that the Student needed a residential placement at the time of the initial unilateral placement, and that it was not unreasonable on the basis of the information it had at that time to propose a therapeutic day placement. The Student at the time had been at a public collaborative program offering a therapeutic day placement, but had been asked to leave that placement after he broke into the school and was found sleeping in a closet. The night-time walk-about was part of a pattern of aberrant behavior that the Student had displayed over a considerable period. The district convened the Team and offered a different day placement. The Student attended the new day placement for three days, then decompensated, refusing to attend school any more, wandering at night, becoming involved with a neo-Nazi group, and generally behaving in ways that were patently unsafe and disorganized. The Student’s Parent then arranged for him to attend a wilderness program in North Carolina, and, after that, a residential therapeutic program in Texas. The earlier decision in this matter favoring a residential placement prospectively had been based on reports generated by the Student’s therapist, by the program in North Carolina, and by a court-appointed psychologist evaluating the Student’s competency in a juvenile-court proceeding. In this current decision, however, the Hearing Officer found there was no probative evidence that the recommendations for residential placement in those reports could have been or should have been anticipated by the district when it developed its earlier IEP. There was testimony, however, that a very experienced parent consultant with prior experience as an evaluator had attended the Team meeting at issue and had stated her opinion that the IEP was deficient and that the Student could not make effective progress outside of a residential program. Moreover, as the Hearing Officer acknowledged, there was no doubt that the district “needed to further evaluate Student¼or could have moved more quickly to obtain a necessary psychiatric evaluation.” As to the consultant’s contribution to the Team meeting, the Hearing Officer concluded that she was acting more as an advocate than a consultant and had not performed expert evaluations for some years. He gave her opinion little weight accordingly. As to the acknowledged deficiency of the district’s evaluation process, he concluded that “Parent cannot prevail in her reimbursement claim simply by establishing that Hingham did not follow appropriate evaluation procedures, unless those procedural deficiencies can be shown to have caused the IEP to be inappropriate.” Here lies the critical flaw in this decision. In his earlier decision, the Hearing Officer credited the opinions and recommendations of experts who worked with the Student in therapy after the date of that Team meeting. Those opinions were based on psychological assessments of the Student in various contexts. The Hearing Officer noted that the district should have conducted a psychiatric evaluation at the time of the Team meeting or shortly thereafter (certainly when the Student bombed out of the new day placement, or even after the Student moved to the wilderness program in North Carolina), so what makes it unlikely that the result of a properly and expeditiously conducted assessment would have reached the same conclusions as the later evaluators and therapist did? And why, if the district should have conducted that earlier evaluation and did not, should it now be held unaccountable for information that, if honestly generated, would most likely have supported a residential placement? And, as for the consultant whom the Hearing Officer discredited because she acted more as an advocate, why should the Team be entirely excused from taking steps right away to test the validity of the opinion expressed by that consultant, especially where the facts of the Student’s behaviors were so dramatic? Conclusions like these reflect an overly forgiving and deferential posture toward school districts under a system that is supposed to be designed to ensure that appropriate services and placements are afforded to Students with disabilities. An onerous burden is placed on a parent who must play catch-up when it comes to assembling information about a student’s needs and trying to advocate for those needs to be met. Given the school district’s enormous professional resources and the responsibility—it is not too much, we think, to call that responsibility fiduciary—for these students, the process ought to lean heavily on school districts to carry out their responsibilities with alacrity and thoroughness, especially when the signs are of a student in deep trouble. This decision lets the district off the hook when it is clear that it should have taken aggressive steps at the outset to ensure the Student’s safety and engagement in his education.

A straightforward case for an outside, language-based placement

Arlington Public Schools, 16 MSER 71 (2010), illustrates the kind and quality of testing and historical evidence that can support a parent’s movement of a student to an outside, language-based placement—in this case, the Landmark School in Beverly. A review of the evidence that was reported by the Hearing Officer in support of her order finding a lack of FAPE and favoring placement at Landmark offers a catalogue of many of the typical elements that tend to show that a district’s proposed educational plan is inadequate. Testing of this Student had repeatedly reflected average cognitive ability, a language-based learning disability, and ADHD. The Student had done well in her early elementary school years in a consistent language-based program with small classes and high structure. She had declined both academically and emotionally, however, in middle school, when her program comprised a mix of inclusion and small classes. Academic testing showed regression in key areas involving especially literacy skills. The Student was embarrassed in the midst of the larger inclusion classes and did not want to seek assistance and thereby stand out from her peers. Her behavior became problematic, with school refusal and disciplinary events involving talking back to teachers, etc. While counseling was included as a service in her IEP, the district did not provide counseling and then attempted to cover its compensatory-service obligation over summer months when counseling was beside the point. The proposed program, insofar as the district offered small classes for language-based teaching or support, served a peer group that was not comparable to the Student or compatible with her needs, as several students were seen as behaviorally or emotionally disordered. A reading specialist, who was to implement critical parts of the Student’s service plan, was not certified in special education and was not seeking certification. (On this point, the Hearing Officer cited the provisions of the No Child Left Behind Act requiring that teaching personnel be “highly qualified” and those of IDEA that require special-education license or certification.) The district’s proposed IEP would have actually reduced services and largely included mainstream classes, despite this Student’s reading and writing skills that were measured at several grade levels below her enrollment, whose ADHD rendered her in need of redirection even in her small classes at Landmark, and who had reacted to reduced services in middle school by withdrawing, losing self-esteem, and declining in her academic performance. The Parents’ case was founded largely on the findings and recommendations of a neuropsychologist whose clear and detailed reports and testimony were persuasive enough to the Hearing Officer that she quoted them at length in the midst of her decision. We often point out in these Commentaries the importance of having credible, experienced expert witnesses as critical to the success of any parent’s case. This Parent’s independent evaluator obviously conveyed her findings and recommendations, both around her testing and in her observations of programs, in an eloquent manner, lifted to the attention of the Hearing Officer the dramatic disparities between the district’s educational model for this Student and the type of educational model that her history and depth of need showed she actually required, and provided more than ample ground for a decision for the Parents. (Comments that the Hearing Officer made concerning the district’s psychologist’s presentation suggest that the credibility of the Parent’s expert was underscored by the contrast. She noted, for example, that the school’s psychologist seemed to want to spend his time arguing that there is no such diagnosis as a “language-based learning disability,” and that he tried to criticize the elements of the recommended language-based program without a willingness to testify at any length on the elements of what he would recommend. She also commented that he had written his own report without including any specific recommendations.) Note that even with all that, the Hearing Officer left open the possibility that the district could pull together a true language-based program for next year, and therefore declined to order continuing placement at Landmark for that year.

Conclusion

As these first-quarter comments reflect, we often take issue with the decisions issued by the BSEA. We have pointed out a number of areas in several cases where we feel the Hearing Officers have leaned too heavily in the direction of school districts, especially where they seem too prepared to find no harm and therefore issue no remedies for serious procedural violations. Regardless, there is no question that the Bureau continues to bring a highly professional and utterly serious and diligent approach to the task of deciding the hotly contested, often highly charged, and always complex issues that come before it. We are fortunate to have a due-process system in this Commonwealth with the history, independence, and, in consequence, the sophistication, fairness and professionalism that we find at the BSEA. By report, there are many other jurisdictions where practitioners and parties cannot depend on their due-process systems to yield such consistently thoughtful decisions or on their Hearing Officers to wrestle so responsibly with the complex facts that arise and the vagaries of the laws that apply. From the parents’ and children’s side, the danger of a system that does not bring such care and experience to these decisions is that the easiest outcome will usually be automatically to favor the bureaucracy to which the courts insist deference must be given. It takes very little effort to conclude that a party that bears the burden of proof, in a context where the vast advantage in access to evidence and the presumption of appropriateness belongs to the bureaucracy, has not carried that burden. Here, at least, we know that Hearing Officers resist that easy answer, and before they issue their decisions they wrestle hard and long to make sure they are right. The independence and continuing professional development of this Bureau are very much worth preserving.

Footnotes:

[1] The Parents in this case were represented by this Commentator’s law firm.