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 On the federal level, The Individuals with Disabilities Education Act (IDEA), 29 U.S.C. §§ 1400-1487, originally enacted as the “Education for All Handicapped Children Act” in 1975 and reauthorized in 2004, is the cornerstone of federal law protecting the educational rights of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.

Commentary on Massachusetts Special Education Decisions: 4th Quarter, 2009, by Joseph B. Green

December 03, 2009

Requests For Private-School Funding For Language-Based Learning Disabilities

The two out-of-district placement cases from the fourth quarter of 2009 involved students with language-based learning disabilities who were unilaterally placed by their parents at Learning Prep (Newton) and Landmark (Lexington). In the Newton case, the Parents sought reimbursement for the private-school tuition they had already paid, as well as an order that the district write an IEP with a placement at Learning Prep for the current year. In the Lexington case, the Student was in the 12th grade, and the Parents were seeking reimbursement for 10th and 11th grades only. These two decisions, comprising a total of 75 pages of analysis, merit scrutiny by parties involved in disputes over out-of-district placements for students with language-based learning disabilities. The profiles of the students in these two cases are similar, but the outcomes of the hearings are different.

Newton Public Schools, BSEA #09-6466, 15 MSER 353 (2009)

In this Newton case, the Parents and the district agreed that the Student with average verbal and non-verbal reasoning abilities had significant disabilities that required placing him in a substantially separate program for third grade. The substance of the dispute was whether Newton’s substantially separate program was appropriate for Student. Hearing Officer William Crane, after a lengthy analysis, found that when the Parents first asked Newton to pay for Learning Prep, Newton did not have sufficient information to realize that its program was not appropriate for Student. However, by the time of the hearing, Newton had sufficient new information, including information presented for the first time at the hearing, to conclude that its program was not appropriate for the Student. Therefore, the Hearing Officer denied reimbursement to the Parents for the third-grade year at Learning Prep, but ordered Newton to place the Student at Learning Prep from the date of the decision. The Student’s deficits included a global language impairment (including phonological deficits), integration deficits (including difficulty integrating visual and spatial information), significant verbal and non-verbal memory deficits (affecting, among other things, the ability to decode multiple syllable words), focusing and attention difficulties, including executive functioning deficits, and “very substantial” auditory-processing difficulties. In addition to those disabilities, the Student had a history of seizures, which could cause him to temporarily lose certain learning skills he had already mastered. Not surprisingly, this constellation of disabilities frustrated the Student, sometimes causing him to shut down or regress, and resulted in low self-esteem. In the second grade, the Student was educated in the mainstream classroom with a 1:1 aide and various services outside the classroom. During the year, the Parents had three independent evaluations done—by a neuropsychologist, an educational specialist, and an audiologist. All three evaluators concluded that the Student needed to be educated in a separate, language-based classroom with small classes and with peers who have similar academic, cognitive, emotional, and social profiles. At the IEP meeting reviewing the Parents’ evaluations, Newton proposed placing the Student for third grade in Reach, Newton’s substantially separate program designed for children with language-based learning difficulties who were in the third, fourth and fifth grades. In Newton’s Reach program, special-needs students are taught by a full-time special-education teacher and a full-time aide. Math and literacy are taught in small groups. Science and social studies are taught in an integrated classroom with co-teaching by a Reach special-education teacher and a regular-education teacher. Those classes are taught as a whole and then divided into three small groups, mixing typical and special-needs students but with a consideration of each child’s learning needs. For the Student’s third-grade year there would have been six third-grade children in the Reach program and 15 or 16 regular-education students integrated during science and social studies. Student’s Mother gave the Team the three independent evaluations that recommended Student be taught in a separate language-based program with specific characteristics, some of which Newton’s program did not have. Student’s Mother also visited the Reach third-grade program at the end of Student’s second-grade year. She concluded that the classes would be too large (there were 21 students when she observed) and too chaotic for her son. Parents rejected the IEP and notified Newton that they would be placing their son at Learning Prep and would be seeking public funding for that placement. The next Team meeting took place in March during Student’s third-grade year at Learning Prep. For fourth grade, Newton again proposed its Reach program and again the Parents rejected the placement and re-enrolled at Learning Prep for fourth grade. Sometime after that Team meeting, the Parents had their neuropsychologist and their educational specialist observe both the Newton Reach program and the Learning Prep. Both evaluators concluded that the Reach program was not appropriate and that Learning Prep was appropriate for the Student. The BSEA hearing took place in October 2009, shortly after the Student started fourth grade at Learning Prep. A few weeks before the hearing, the Parents’ neuropsychologist and educational specialist both re-evaluated the Student and again observed both Newton’s Reach program and Learning Prep (one week before the hearing). Also one week before the hearing, the audiologist re-tested the Student, and she observed the Student at Learning Prep the day before the hearing. The test results showed that the Student was basically at the same level as when he was tested two years previously. In fact Student’s I.Q. scores had fallen by 10 points in both verbal reasoning and perceptual reasoning. Standardized academic test scores remained the same or dropped slightly even after the year at Learning Prep. Since these re-evaluations and re-observations were done so close to the hearing date, the reports had not been written, but the evaluators testified at the hearing about their new evaluations and new observations. The Hearing Officer ruled that the Parents were not entitled to reimbursement for third grade at Learning Prep, but they were entitled to a placement at Learning Prep for fourth grade from the date of the decision. The Hearing Officer ruled that at the time the IEP for third grade was written (for the Reach program), although the Team had Parents’ three private evaluations, the Newton Team reasonably could have concluded that Reach would likely meet all the evaluators’ recommendations except for instruction in small groups with peers of a similar profile other than for reading and math. One might think that this is a very important omission from the proposed program, but the Hearing Officer found it “relevant” that “none of the written evaluation reports of Parents’ four experts makes clear the relative importance of their many recommendations.” (Emphasis added.) Therefore, Newton could not be expected to know whether Student would be unable to access the curriculum and make effective progress if that one recommendation—small classes with similar peers— was not implemented but the other recommendations were implemented. The Hearing Officer also pointed out that none of the Parents’ experts had observed the Reach program until after the Team meeting and thus did not provide any input to the Team concerning the appropriateness of the proposed placement at Reach. When the Newton team met in March of Student’s third-grade year (Student was at Learning Prep) and again proposed the same placement at Reach for fourth grade, the Hearing Officer found that Newton still could reasonably have believed that Reach would be an appropriate placement for Student. However, the Hearing Officer held that the information provided by the Parents’ evaluators at the hearing itself near the beginning of Student’s fourth-grade year was “substantial, new information regarding Student’s educational needs and whether those needs could be appropriately met within Newton’s Reach program.” The new information showed that Newton’s Reach program would not be appropriate for Student and that Learning Prep is appropriate. Therefore, Newton would be responsible for paying for Learning Prep from the time it received that information—that is, from the date of the decision. The new information presented at the hearing that the Hearing Officer found to be the critical evidence showing that Newton’s Reach program did not provide a FAPE for the Student was the following:

1. The three recent re-evaluations done “in anticipation of the hearing” demonstrated that in certain test areas Student had actually declined compared to two years earlier, thus increasing the “urgency” of making sure Student received appropriate services.
2. The five observations of Newton’s program—by the neuropsychologist and the educational specialist the previous June (after the Team meeting and apparently not shared with Newton until the hearing) and then again by those same evaluators as well as the audiologist in October shortly before the hearing. The evaluators explained why the structure of the Reach program—especially the part of the program where there would be large integrated classes with regular and special-education students—would not be appropriate for Student. Although the same evaluators had made the same recommendations in their evaluations two years earlier—that Student had to be in small classes with similar peers—the Hearing Officer apparently gave the opinions more credence after the evaluators had actually observed Newton’s program and could explain in detail why that type of model was not appropriate for Student.

After finding that the new evidence presented at the hearing proved that Newton’s program was not appropriate, the Hearing Officer found that Learning Prep was appropriate for Student based on the following:

1. The testimony of the three evaluators that the classes and the pace and content of instruction at Learning Prep were appropriate for Student, based on their observations of the Student at Learning Prep shortly before the hearing (one observation was done the day before the hearing).
2. "Perhaps most important” was the progress that Student had made in the third grade at Learning Prep in terms of self-esteem and openness to learning as well as better retention of what he had learned.

Summer services and the meaning of “stay-put”

The Newton case also addressed the issue of whether the “stay-put” rule requires the district to continue paying for a particular summer placement that it had paid for in the past. The IEPs for the Student in Newton included speech/language and academic services in the summer in Newton’s own summer program after second and third grades. However, Newton had agreed to pay for Camp Chickami for those two summers, even though Newton believed it was not an appropriate placement for the Student. The Parents claimed that because Newton had agreed to pay for Camp Chickami after second and third grades, Newton should be required to pay for Camp Chickami after fourth grade because that would be the “stay-put” placement. The Hearing Officer disagreed and pointed out that a change in the location of where services are provided is not a change in “placement” unless the change in location would “substantially dilute the quality of a student’s education.” The Hearing Officer found that the Parents had presented no probative evidence addressing the question of what, if any, diminution of services would occur by Student’s being placed within Newton’s summer program as compared to the program at Camp Chickami. Therefore, the Parents did not have stay-put rights that required Newton to continue funding Camp Chickami. Comment: If parents cannot win both reimbursement and a prospective placement, it is usually much more advantageous to win the placement, especially where, as in this case, the student is young and may need to be at the private school for a number of years. That is because when the IEP specifies a placement at a private school by order of the Hearing Officer, the parents have a right to “stay-put” at that placement and the district will have the burden of proof to show why the student should be brought back to the district. It should be noted that in this case the Parents succeeded in getting a placement at a private school without having the Student try the district’s substantially separate program. However, it should also be noted that the Parents had three evaluators, who each did two evaluations. Even though all the evaluations recommended basically the same thing, the Hearing Officer decided that the Parents were entitled to the private-school placement only after the second set of evaluations by the same evaluators, backed up by five observations of the district’s proposed program. This is obviously quite a daunting expense for the Parents, especially since those costs are not recoverable even when the Parents prevail. The Newton case deals with many of the principles and issues that arise when parents are seeking reimbursement for tuition and a prospective placement at a private school, especially when the district is offering its own substantially separate program. Some of the general principles that emerge from this case are as follows: First, the Hearing Officer will consider what the district knew or should have known about the Student at the time the IEP was proposed. Second, while at most other kinds of trials the issue is proving what happened at a previous time, at BSEA hearings the issue is not only how the Student was doing previously; the Hearing Officer will consider the current situation, including new evidence presented at the hearing itself. Third, this case shows that there is often an advantage for the parents if they can afford to make a unilateral placement, because success at the private school can be useful to show what model the student needs to access the curriculum and make effective progress. In this case the Hearing Officer did not recite and analyze standardized test scores in detail; instead the Parents were able to prove that the very model proposed by Newton was no longer appropriate for the Student. Fourth, in that regard the Newton case shows the importance of Parents’ having evaluators observe the district’s proposed program—five times in the Newton case—and explain clearly what it is about the proposed program that would not work for the Student.

Lexington Public Schools, BSEA #09-1718, 15 MSER 384 (2009)

The Parents in this case unilaterally placed Student at Landmark after he had completed the ninth grade at Lexington High School. The hearing took place in the fall of Student’s 12th-grade year at Landmark, but the Parents were requesting reimbursement only for 10th and 11th grades, because the Student’s 12th-grade program was a college-preparatory program that was not an approved special-education program. Although the Student attended Landmark as a residential student, the Parents were requesting reimbursement only for the day portion of the Landmark tuition. Hearing Officer Rosa Figueroa cited the same legal principle as the Hearing Officer in the Newton case—that is, to determine whether Parents are entitled to public funding for a unilateral placement at a private school, a Hearing Officer will “consider the program and services offered by [the district] in light of the information reasonably available to the Team at the time the IEP was developed.” However, while the Hearing Officer in the Newton case denied reimbursement for the first year of the placement but ordered a placement for the second year, the Hearing Officer in the Lexington case ordered Lexington to reimburse the Parents for the first year day tuition at Landmark, but denied the request for reimbursement for the second year. In the Newton case, the Parents had presented the Team with three independent evaluations before the Team meeting, all of which recommended language-based teaching in small classes with similar peers. Even so, the Hearing Officer found that the district did not have enough information to conclude that its program was not appropriate until three more evaluations and five observations were done the following year. In the Lexington case, the Parents did not present the Team with any evaluations that recommended a separate language-based program before the relevant Team meeting. The Hearing Officer nevertheless found that the Parents were entitled to reimbursement for the placement at Landmark for sophomore year, because Lexington had enough other information to show that the Student had not made effective progress in the Lexington program and would be unlikely to do so in the following year. The information that the Hearing Officer found sufficient to put Lexington on notice that its program was not appropriate included the severe deterioration in the Student’s academic performance and emotional well-being in the ninth grade. That and other information should have led Lexington to conclude that basically the same IEP for 10th grade—full-inclusion with four pullouts a week for “small group” reading and six periods in the resource room for academic support—would not provide the Student a FAPE. Therefore, “faced with the same unsuccessful IEP for Student’s10th grade,” Parents’ decision to place Student at Landmark was warranted. A new evaluation performed when Student was in the 10th grade at Landmark concluded that Student did need to be in a separate, language-based program in small classes with similar peers (such as Landmark’s program). However, in a rather cruel irony for the Parents, the Hearing Officer found that although Parents were absolutely justified in placing Student at Landmark for 10th grade, Student made so much progress at Landmark in the10th grade (almost all As, huge gains on standardized testing, relief from depression, and newly found self-confidence) that Parents could not meet their burden to prove that Student needed to remain at Landmark for 11th grade. Although the Hearing Officer had found that Student had not made progress in Lexington’s full-inclusion program with pullouts in ninth grade and was unlikely to make progress in 10th grade, the Hearing Officer nevertheless found that Parents did not meet their burden to prove that Student would not be able to access the curriculum and make effective in 11th grade in basically the same program that had been inappropriate for ninth and tenth grades. Comment: The Parents in this case were fortunate to be awarded reimbursement for the first year of the private placement without any evaluator recommending such a program. However, even without such a recommendation, the Hearing Officer found that the Student had a disastrous year at public school and that Lexington’s program did not provide adequate remediation for the Student’s disabilities, thus justifying the private placement. The private-school placement at Landmark the following year was a tremendous success. The Student himself made a heartfelt statement that “[w]ithout the assistance of Landmark, I would have become another statistic, a worthless creature that roams the earth without a purpose¼. Simply put, Landmark School was my oasis in a desert of despair. Lexington High was that desert and as we all know, people need water to survive.” Certainly in that situation no responsible parents would willingly send their child back to the same inappropriate public-school program. Hearing Officers in other cases have found that the lack of progress in the private-school placement can be a factor in denying reimbursement or a placement. See e.g., Pentucket Regional School District, BSEA #08-5616, 14 MSER 386 (2008) (in denying Parents reimbursement for a second year at Landmark, Hearing Officer noted that Student did not make dramatic progress at Landmark and had even lost ground in some areas). Parents comparing Pentucket and Lexington have to wonder how much progress is required at the private school to justify a continued placement there but is not too much progress such that the placement is no longer needed. Nobody said these cases are easy.

Residence

The school that a student is to attend is determined under MGL c.76, §5, which provides that a public school is not required to enroll a student who does not actually reside in the particular town, unless that attendance is authorized by law or the school committee.

North Attleborough, BSEA #09-4604, 15 MSER 332 (2009)

Although this case arose due to the arraignment of the Student for a felony offense and his resulting suspension from school, the issue before the Hearing Officer was whether this Student resided in North Attleborough for purposes of attending its public schools and receiving special-education services from North Attleborough Public Schools. Hearing Officer Raymond Oliver concluded that Student was not, in fact, a resident of North Attleborough based, in large part, on the investigations completed by North Attleborough’s Supervisor of Attendance. Residency may not always be easy to discern where a student’s parents are divorced and live in different public-school districts. Here, although Student’s Parents were divorced, they both resided in their respective homes in Plainville, where Student also resided and listed as his home address on his driver’s license, and where his younger sibling attended school. Despite Student’s and his Mother’s testimony that they resided at addresses in both North Attleborough and Plainville, Hearing Officer Oliver found no indicia of actual residence at the North Attleborough address. The Student’s only link to North Attleborough was an apartment in which they claimed to sleep certain week nights; however, Hearing Officer Oliver determined that, even if that were true, it would not be sufficient to establish Student’s residency in North Attleborough.

Marlborough Public Schools, BSEA #10-1450, 15 MSER 381 (2009)

This matter involved a dispute between Marlborough and Falmouth over which district had fiscal and programmatic responsibility for a special-education Student who was in the residential program at Landmark School, in Beverly, and whose divorced Parents lived in different towns. The Student lived in Marlborough with her mother, who had primary physical custody. Her father had lived in Falmouth for approximately two years prior to Student’s initial placement at Landmark, but Student had never attended school in Falmouth or even lived in Falmouth (the father had visitation for rotating holidays and for three weeks during summer vacation). Marlborough claimed that Falmouth had to share fiscal responsibility for Student’s placement because 603 CMR 28.10(3) provides that when a student is placed at a residential special-education school, the parental residence determines the responsible school district. Marlborough claimed that Falmouth was also a parental residence and should be equally responsible for the Student’s free, appropriate public education. Hearing Officer Lindsay Byrne affirmed the DESE’s assignment of sole fiscal and programmatic responsibility to Marlborough based upon the parties’ agreement that the Student resides in Marlborough, which is the center of her family and civil life. The Hearing Officer held that the provisions of 603 CMR 28.10(3) must be read to be consistent with MGL c.71B and Walker v. Franklin, 416 Mass. 291 (1993), which direct educational responsibility to the child’s town of residence, not the parents’.

Qualifications and competency of district providers

Hudson Public Schools, BSEA #08-3722, 15 MSER 313 (2008)

The Parents in this case claimed that the district’s IEP and placement failed to provide FAPE, largely because the home-based providers and occupational therapist provided by the district were not sufficiently trained and qualified to provide services to the Student, who has severe autism and global developmental delays. The Parents’ experts concluded that the Student was generally deriving benefit from the district’s program, but made specific recommendations, including but not limited to the hours of home services and consultation that should be provided and the levels of education for the various district program providers. At the hearing, the Parents submitted the reports of their independent experts, but the experts did not testify. Thus, when the district’s witnesses testified that such credentials were unnecessary, the Parents had no evidence to contradict that testimony, because their experts’ reports cited no factual basis for their recommendations regarding credentials they claimed were necessary. Moreover, the IDEA does not provide authority to Parents or Hearing Officers to direct school districts to designate particular individuals to provide services to students, unless the district’s choice would deprive the student of FAPE. Comment: This case illustrates the importance of not only seeking high-quality independent experts but also having those experts testify at hearing to explain their recommendations in order to meet the burden of persuasion.

District funding of independent evaluations

Attleboro Public Schools, BSEA #09-3926, 15 MSER 335 (2009)1

The narrow issue in this matter was whether the district must pay for an independent evaluation requested by Parents on behalf of their child who qualifies for free or reduced-cost lunch, even when the Parents did not disagree with the district’s evaluations. Attleboro’s position was that its three-year reevaluation was appropriate and, since the Parents did not disagree with the results obtained in the district’s testing, it was not obligated to pay for the Parents’ requested independent evaluation. Hearing Officer Raymond Oliver looked to both the federal law (20 USC § 1415(b)(1) and 34 DFR 300.502(b)) and Massachusetts law (MGL c.71B, §3 and 603 CMR 28.04(5)) in concluding that Massachusetts special-education law procedurally and substantively exceeds the federal standards for those who qualify for free or reduced-cost lunch and prevails. Unlike the federal regulations, Massachusetts provides for full district funding of parentally requested independent evaluations if the family income does not exceed 400% of the federal poverty level and the Student is eligible for free or reduced-cost lunch. Comment: This opinion is important for finding that, regardless of whether the a parent agrees with the district’s evaluations, Massachusetts law requires the district to fund independent evaluations equivalent to the types of district assessments requested by low-income parents whose children qualify for free or reduced lunch.

Lexington Public School, BSEA #10-2604, 15 MSE 372 (2009)

In this case, Lexington asked Hearing Officer Rosa Figueroa to (i) deny the Parents’ request for independent evaluations, including adaptive physical education and functional living skills, (ii) deny the Parents’ request for reimbursement of costs for their independent neuropsychological evaluation, and (iii) rule that Lexington was not required to pay amounts greater than the state rates for independent evaluations in the areas of speech and language, assistive technology, vocational/transitional, and occupational therapy. Hearing Officer Figueroa determined that, with the exception of the physical-therapy evaluation, Lexington’s other evaluations were all appropriate; therefore, it was not required to pay in excess of the state rates for independent evaluations in other areas. Additionally, Parents’ request for reimbursement of the independent neuropsychological evaluation had previously been denied by another Hearing Officer in a separate matter, so the Parents were precluded from bringing the same claim again.

Residential placement

Parents seeking residential placement may face an uphill battle due to the restrictiveness of the placement, as well as the cost of tuition. Therefore, Parents should be highly prepared before seeking such a hearing at the BSEA, including having highly qualified, independent experts prepared to testify on their behalf as to the need for residential placement.

Boston Public School, BSEA #09-3999, 15 MSER 338 (2009)

The Parent in this case contended that Boston’s in-district day placement was unable to provide Student with FAPE and that he required a residential placement in order to address appropriately his pervasive developmental disorder–not otherwise specified (PDD-NOS) and mild mental retardation (MR). Parent argued that the residential placement was required in order for Student to access the curriculum, generalize skills, and make progress in his social and emotional skills. However, the Parent failed to present evidence at hearing regarding (i) any specific residential placement appropriate for Student, (ii) evidence of any such placement where he had applied and been accepted, or (iii) that any person who had educated or evaluated Student recommended residential placement. The Parent also failed to provide any expert testimony at hearing supporting the request for residential placement. In contrast, Hearing Officer Raymond Oliver heard testimony from a consultant for Boston who reviewed Student’s records and whose testimony was therefore weighed accordingly. Boston’s consultant testified as to Student’s progress in Boston’s program (which included an extended-year program through Wediko Children’s Services), finding nothing in the documentation, interviews, or observations that indicated Student’s need for residential placement. Based upon evidence that intensive family services would be recommended, Hearing Officer Oliver ordered that Boston’s IEPs provided FAPE and Student did not require a residential placement, but that evidence supported an extended-day program five days a week for two hours per day to assist Student and Parent in carryover of academics and skills. Comment: Note that the Hearing Officer ordered an extended-day program, including a specific amount of time and purpose for the program, although the Parent had not requested it.

New Bedford Public Schools, BSEA #09-3103, 15 MSER 324 (2009)

In this case, Hearing Officer Raymond Oliver was asked to determine the issue of whether a residential placement made by the Department of Children and Families (“DCF”), who had custody of Student through a CHINS proceeding, was a “stay-put” placement. Contrary to the Parent’s position that DCF’s placement created stay-put rights, DCF argued that its residential placement of Student was for non-educational reasons and did not constitute an educational placement or create stay-put rights. New Bedford, where the Student and his Parent resided, agreed with DCF and pointed out that DCF had not consulted with New Bedford Public Schools in making the placement nor pursued any programmatic or fiscal responsibility for the placement from New Bedford. Finding that the residential placement had never been proposed by Student’s Team or included in an IEP accepted by the Parent, Hearing Officer Oliver made the logical order that Student’s stay-put placement was not DCF’s residential placement, but was the substantially separate in-district placement contained within the last accepted IEP.

Unilateral placement reimbursement

Public School District, BSEA #08-7930, 15 MSER 403 (2009)

This particular case is, hopefully, not factually applicable to many other special-education cases, in that this Student became involved in a personal relationship with one of her teachers, resulting in her being diagnosed with post-traumatic stress disorder (PTSD). The issues before Hearing Officer William Crane were whether the Parent could get reimbursement for the private placement of her daughter under §504, and whether the next year’s IEP provided FAPE. Hearing Officer Crane determined that the IEP did provide FAPE, and because the Parent had refused to consent to the district’s requested evaluations, she was not entitled to reimbursement for her unilateral placement. Comment: Unless a district’s requested evaluations are harassing or otherwise burdensome, parents should generally allow the district to conduct the evaluations it requests. Parents need to show that they are willing to work cooperatively with the district for the benefit of the student’s education, and are willing to provide the district with the information necessary to make its educational decisions for the student.

1. A member of this Commentator’s firm represented the Parents and Student in this matter.