Comment: This case, like a number of others reviewed this quarter, shows how essential it is that Parents present the testimony of credible independent experts who have conducted thorough evaluations, made detailed and thoughtful recommendations, and observed both the district’s proposed program and the one proposed by the Parents. The independent evaluators in this case were vital in explaining not only why the Student needed to be educated in a separate setting, but what type of instruction he needed to receive there. 

This case points up the fact that all pullout instruction is not alike. Too often, as in this case, a district will attempt to respond to an independent evaluator’s recommendation of a specialized setting by offering whatever type of pullout instruction the school happens to have available. (Here, the Hearing Officer emphasized the statement of an MHS special-educator that the type of program the independent evaluators recommended for the Student “doesn’t exist at the moment.”) The Hearing Officer, in analyzing the evidence before him, did an admirable job of distinguishing between the separate, specialized, intensive program of remediation and skill development that he found the Student required, on the one hand, and the separate but more general, content-based academic support program that MHS proposed, on the other.

One puzzling aspect of the decision is the Hearing Officer’s failure to find that Marblehead’s responsibility for reimbursement extended back to the start of the Student’s placement at LPS, on November 15, 2006.[3] In this case, Parents and district had agreed as of September 23, 2006, that the IEP with which the Student entered MHS did not meet his needs, yet it took the district more than two months to propose a new one.[4] At the time when the Parents removed the Student from MHS, a month had passed since the September 23 meeting and no change had been proposed in the Student’s program or placement, nor had the district begun any evaluation. Under these circumstances, it would seem that the district should be held responsible from the beginning of the Student’s LPS placement for its failure to provide him with FAPE. 

It does not appear that the district suffered any prejudice as a result of the Parents’ failure to comply with the 30-day IEP response period set forth in 603 CMR 28.05(7)(a). To require the Parents to wait for reimbursement to begin until 30 days after the promulgation of the belated and inappropriate December 2006 IEP would appear unfair. The Hearing Officer treated the Parents’ failure to respond within 30 days as the equivalent of a rejection on the 30th day. If the Parents had sent the district an actual rejection on the 30th day, which is permitted by the regulation, would their reimbursement have been reduced in the same way? As a practice point, this case illustrates the importance of timely responses to IEPs. Even though the Student may be attending an out-of-district unilateral placement, and the IEP proposes an in-district placement that the district has little reason to believe Parents will accept, the Parents should not assume that the district knows they are rejecting the IEP, but should make their rejection explicit.  

North Andover Public Schools, BSEA #07-6717, 14 MSER 8 (2008)

The Student in this case, like the Student in Marblehead, had a language-based learning disability. The dispute concerned the Student’s program for eighth grade (2007–2008 school year). The Parent sought placement in a private special-education program at the Landmark School.[5] The district agreed that the Student required a language-based program but contended that it could meet the Student’s needs within the district.

The report of this case reads like a catalogue of misunderstandings and confusion between the parties.  The major areas of contention included whether the Parent’s advocate was authorized to act on the Parent’s behalf (up to and including assenting to a proposed placement), whether the Parent did or did not accept a proposed in-district program for eighth grade, and whether the parties agreed to postpone development of an IEP following Team meetings.

On the issue of the advocate’s authority, where the Parent had told the district in writing that the advocate would be representing her at a Team meeting and had her “complete permission on all matters regarding [the Student’s] educational placement,” the Hearing Officer found that the Parent had effectively delegated her educational decisionmaking authority to the advocate. The Hearing Officer also determined that the district had reasonably relied both on the advocate’s consent to place the Student in a proposed substantially separate in-district program for eighth grade and on the advocate’s agreement at a Team meeting to postpone development of an IEP until the district’s outside reading consultant had completed an evaluation of the Student.

The Student began eighth grade in the proposed substantially separate program. When the Parent subsequently made clear that she did not in fact consent to that placement, the district changed the Student’s program back to the inclusion model required by his last-agreed-upon IEP. Neither the district nor the Parent believed that the prior program was appropriate for the Student. If the Parent had allowed the Student to remain in the substantially separate classroom, she might have been able to obtain evidence as to the appropriateness or inappropriateness of the district’s proposal, including evidence of the child’s progress or lack of progress within that model. As it was, however, the Hearing Officer discounted the Parent’s testimony about the Student’s adverse physical and emotional reactions to school, on the grounds that any reaction was to a program that was admittedly not appropriate. We note also that, although the Parent took the position that the proposed substantially separate program was more restrictive than Landmark would be, it is unusual for a Parent to insist on an inclusion setting while seeking placement in the separate environment of a private special-education school.

The Parent’s case suffered from a lack of expert testimony. For example, the Parent contended that the Student required specialized instruction in decoding, but the district pointed to Wilson Assessment of Decoding and Encoding (“WADE”) test scores to show that the Student no longer needed such instruction. The Parent presented no evidence to the contrary, such as the testimony of an independent evaluator who might have been able to interpret those scores and/or to perform additional testing. As another example, the district presented evidence that the Student was making good progress in small-group language-arts, social-studies, and science classes, and was able to access the mathematics curriculum with modifications. Again, the Parent offered no evidence to contradict these data. It appears that the only witness who testified in support of the Parent’s case may have been the Parent herself. The district, by contrast, presented the testimony of two reading specialists (one a district employee and one a consultant with whom the district contracted), at least one special-education teacher, and two special-education administrators. Given this, and given that the Parent, as the party seeking a change in placement, had the burden of proof, it is not surprising that the Hearing Officer found the district’s proposed program appropriate and denied the Parent’s request for a Landmark placement.

As a final matter, the Hearing Officer considered whether the district had committed procedural violations which, if proven, could entitle the Student to compensatory education. The Parent argued that the district had committed such violations by placing the Student in the substantially separate program without her consent, failing to send her an IEP in a timely manner following  Team meetings, and failure to reconvene the Team to consider the full evaluation performed by the district’s reading consultant. With regard to the issue of consent to placement, as discussed above, the Hearing Officer found that it was reasonable for the district to believe that the Parent had consented. The Hearing Officer stated that any issues regarding the Parent’s failure to make her intent clear to the district “are between Parent and Advocate and do not constitute compensatory education from North Andover.” As to the delay in promulgation of the IEP, the Hearing Officer found that, “although North Andover may not have used good educational practice in not sending an IEP after the August and September meetings,” the Parent, through her advocate, had agreed to extend the time for preparation of the IEP. The Hearing Officer did not specifically consider the effect of the failure to reconvene the Team to consider the consultant’s report. Overall, however, she found that although the district had committed procedural violations, none of those violations had deprived the Student of educational benefits. Thus, she concluded, the district was not liable to him for compensatory education.

Comment:  Although there are specific procedures for delegation of educational decision making authority by a Student who has reached the age of majority, see 603 CMR 28.07(5), there are no corresponding provisions governing delegation of authority by a Parent. In this case, however, it does not seem that the existence of such a procedure would have made a difference, as the Parent’s written communication to the district about the advocate’s role appears to have been clear. 

This case, like Marblehead, demonstrates the need for the testimony of independent evaluators to prove a case for out-of-district placement. The Parent is most often the party required to carry the burden of proof in such cases. This task (which is not easy to begin with) can become nearly insurmountable if the Parent presents no testimony other than his or her own.

Change of placement by district

Boston Public Schools, BSEA #08-3552, 14 MSER 77 (2008)

In this interesting case, the proceeding was initiated by the district in order to enforce an IEP proposing to change the Student’s placement from the Boston Latin School to the McKinley Middle School, a separate in-district special-education school. The Student was a seventh-grader diagnosed with depression and PDD. He had begun the school year (2007–2008, which was his seventh-grade year) by matriculating at the Boston Latin School as a regular-education student.  Within the first few weeks of school, he began to exhibit emotional problems and inappropriate behaviors. He then experienced a crisis that included an aggressive incident (placing his hands around another Student’s neck and then banging his own head against a wall) as well as crying, rocking, and hitting himself. 

The Student underwent two psychiatric hospitalizations of about two-and-a-half weeks each during the fall of 2007, with the first one beginning on the day of the incident. Several weeks after his second discharge, Boston convened a Team meeting and found the Student eligible for special education. The district proposed an IEP calling for the Student to receive all academic instruction in a substantially separate setting. The IEP also provided for counseling, behavioral/social/emotional services, physical education, and “special projects,” all to be delivered in a separate setting. The district proposed to place the Student at McKinley, described as a “public, ‘separate day school.’” The Parent rejected the IEP in large part, stating that she would accept only the counseling services and only if they took place at Boston Latin.[6] She rejected the proposed placement at the McKinley School.

As of the time of the hearing, the Student had not returned to Boston Latin, had been out of school for approximately six months, and had been receiving tutoring pursuant to a psychiatrist’s submission of a Physician’s Statement for Temporary Home or Hospital Education (603 CMR 28.03(3)(c)). The only disciplinary action taken against the Student consisted of a three-day suspension. Thus, although Boston alleged that “maintaining Student’s current placement at [Boston Latin] would substantially likely result in injury to Student or others; the health and safety of Student and others would be endangered by delay; and the special education services accepted by Parent are inadequate to address Student’s needs,” this was not a case in which 20 USC §1415(k)(3)(A) (the IDEA provision that allows Parents or district, in the disciplinary context, to seek a child’s removal from his current placement due to dangerousness) came into play.[7]

The central issues to be decided by the Hearing Officer were (as in almost any placement dispute) whether the proposed IEP provided the Student with FAPE and, if not, whether the IEP could be made appropriate through additions or modifications. As discussed in greater detail below, it would seem that if Boston were to fail to carry its burden of proof on this issue, the Student’s placement would remain at Boston Latin. Apparently because the Parent’s response to the hearing request had stated that the Student should be allowed to return to Boston Latin with appropriate support and accommodations, however, the Hearing Officer listed as a third issue whether the Student should be allowed to return to his placement at Boston Latin.

In assessing the Student’s needs and the appropriateness of the proposed IEP and placement, the Hearing Officer relied in large part on the testimony of the Student’s private therapist. The Hearing Officer observed that the therapist knew the Student well (having seen him weekly in therapy for three years), had communicated with the Student’s psychiatrist, had worked closely with the Parent, and knew the proposed McKinley program through his work with other patients. The Hearing Officer also stated that the therapist testified in a “professional, careful, candid, and reliable manner.”

The Hearing Officer credited the therapist’s testimony that the incident in which the Student attempted to choke a peer was unique, that it was situational, and that the Student, since the date of the incident, had made progress through therapy and did not at the time of the hearing present a significant safety risk to himself or others. The therapist recommended that the Student receive supports and services at school, consisting of “check-in” support, counseling, a social-skills or anger-management group, and ongoing communication between the therapist and the school service providers. The therapist stated, and the Hearing Officer found, that with these accommodations and supports, which could be provided within a regular-education classroom, the Student was likely to be able to attend school safely.

In support of its argument for McKinley, Boston relied on the testimony of a school psychologist. Although the Hearing Officer viewed the psychologist as sincere, he found that “her understanding of Student was not complete, with the result that she did not present reliable expert testimony regarding Student’s emotional deficits and how they should be met.” Therefore, he discounted her testimony, concluding that a number of the bases for her opinion were flawed.  For example, the psychologist sought “to understand a Student’s emotional deficits from a record review and brief evaluation, without consultation with the treating therapist” or with school personnel who knew the Student from previous years. Her belief that the Student was psychotic was not supported by the Student’s therapist or psychiatrist nor by the weight of the evidence. Most important in the Hearing Officer’s view, the evidence undercut the psychologist’s assertions that the frequency of the Student’s emotional incidents had been increasing, that the Student had been decompensating, and that he therefore needed a separate, therapeutic program. The Hearing Officer concluded instead that the emotional episode in question “is best understood as an isolated incident principally caused by the particular circumstances and stressors to Student at that time, rather than as a change in Student’s mental health status,” in accordance with the opinion of the Student’s therapist.

Boston presented two other witnesses who were staff members at McKinley and who testified about that program. The Hearing Officer found, however, that “[t]hese witnesses simply did not have sufficient knowledge of Student’s educational profile” and thus were unable to make “a specific recommendation regarding the appropriateness of McKinley for Student.” In addition, the information that they did give about the program led the Hearing Officer to conclude that the proposed peers at McKinley would not be appropriate, either academically or behaviorally, for the Student. For all of these reasons, the Hearing Officer found that Boston failed to meet its burden of persuasion regarding the appropriateness of the proposed McKinley placement.   

Citing Schaffer v. Weast, 546 U.S. 49, 62 (2005), the Hearing Officer assigned to the Parent the burden of persuasion as to whether the Student should be allowed to return to Boston Latin. Apparently he viewed her response to the hearing request as a request for relief, as to which he believed she should have the burden of persuasion. In this case, however, it was the district that had filed the hearing request, and the district that sought to change the Student’s placement from Boston Latin to McKinley. The Parent did not file a hearing request of her own, nor was she seeking some third alternative.[8] It would seem that the Parent’s position (that the Student should not attend McKinley, and should stay at Boston Latin) was merely the observe of the district’s (that the Student should leave Boston Latin and attend McKinley). It would therefore seem that, if (as happened) Boston failed to prove its case for McKinley, the Parent should not necessarily have a separate burden of persuasion on the issue of remaining at Boston Latin.

In any event, the Hearing Officer found that the Parent had not carried what he viewed to be her burden of persuasion on this issue. The Hearing Officer acknowledged that both parties envisioned the Student’s eventual return to Boston Latin, and he credited the Parent’s and therapist’s testimony that the Student would suffer adverse emotional consequences if not permitted to return. The Hearing Officer stated, however, that he was unable to conclude that the Student should return immediately to his previous placement. The Hearing Officer cited the stresses inherent in the demanding Boston Latin program, the difficulties of a midyear return, the uncertainty as to how the Student would respond after being out of school for six months, and the fact that the therapist did not unequivocally support an immediate return. 

The Hearing Officer assumed that, if the Student were to return immediately, Boston Latin would need to alter the placement, perhaps through such measures as altering the academic expectations for the Student. The Hearing Officer stated that Boston should consider voluntarily doing so, but that Section 504 of the Rehabilitation Act did not require Boston Latin to make fundamental or substantial changes in its program. In the event that Boston Latin did not choose to allow the Student to return right away, the Hearing Officer ordered Boston immediately, through the Team process, to identify another specific Boston middle-school placement where the Student could attend a regular-education classroom with appropriate supports. The Hearing Officer ordered Boston to amend the Student’s IEP to provide those supports, consisting of the “check-in,” counseling, and consultation described above, and to consider what services, if any, should be provided to address the Student’s social-skills deficits. The Hearing Officer further ordered that the Team develop a transition plan for the Student’s return to Boston Latin. He stated that the plan would need to include “specific criteria which, if satisfied, would allow Student to return to Boston Latin,” as well as a clear process for reviewing the Student’s progress toward meeting those criteria. The Hearing Officer emphasized the need for Boston to have supports and services in place at Boston Latin before the Student’s return. The Hearing Officer also suggested that the parties consider obtaining further information about the Student’s needs (particularly the impact of his PDD), by such means as a neuropsychological evaluation.

Comment:  This case illustrates the need not only to present expert testimony, but to have an expert who is fully familiar with the Student. In this case, the Hearing Officer declined to accept the recommendations of three Boston witnesses whose recommendations were not based on such knowledge. The Hearing Officer credited instead the testimony of the Student’s therapist of three years, who knew the Student extremely well and whose recommendations were based on the Student’s individual needs.

This case, like Marblehead, also shows that a district will not be allowed to divert a Student into a program that may sound plausible and that happens to be available, if that program does not actually meet the Student’s unique needs. This is true regardless of whether the Student needs a more-specialized program than the district is proposing, as in Marblehead, or a less-specialized one, as in Boston.

Motions—res judicata and collateral estoppel, dismissal with prejudice

Harwich Public Schools, BSEA #08-1670, 14 MSER 22 (2008)

In this case, the Hearing Officer considered the district’s motions to dismiss the Parent’s claims on grounds of res judicata and collateral estoppel. He also ruled on miscellaneous other motions filed by the pro se Parent and by the district.

In the case before the Hearing Officer, the Parent filed a hearing request in November 2007. She sought relief including a determination that her son had not been found eligible for special education or a Section 504 plan, a determination of his eligibility under Section 504, an order compelling the district’s compliance with a previous BSEA decision, and reimbursement for her unilateral placement of the Student at a private school, the “Auburndale School,”[9] beginning in September 2007. The district based its motions to dismiss on a prior proceeding that had involved the same parties. The issues in that 2007 proceeding were whether a previous partial IEP provided FAPE (the previous Hearing Officer held that it did, with modification), whether the Parents were entitled to reimbursement for their unilateral placement of the Student at “Auburndale” during the 2006–2007 school year (the previous Hearing Officer held that they were not), and whether the Student was entitled to compensatory education on the grounds that the district should have found him eligible earlier (the previous Hearing Officer rejected this claim as well).

The Hearing Officer began by reaffirming that the principles of res judicata and collateral estoppel,[10] which have been developed in the context of litigation in court, apply equally to BSEA administrative proceedings. The Hearing Officer found that, in this case, res judicata prevented the Parent from relitigating the issue of the Student’s eligibility, which had been addressed in the 2007 decision. He denied the district’s motions to dismiss as to all of the Parent’s other claims, however, finding none of those claims to be barred by res judicata or collateral estoppel.

With regard to the Parent’s claim for reimbursement of expenses related to the Student’s 2007–2008 “Auburndale” placement, the Hearing Officer pointed out that the 2007 decision had held “Auburndale” to be inappropriate with regard to the 2006–2007 school year, but that the appropriateness of the unilateral placement for the 2007–2008 school year “is a separate and subsequent issue although obviously related to the issue of appropriateness for the previous school year.” Although the Hearing Officer found the Parent’s arguments on this issue to be “perplexing,” he ruled that she “must be given an opportunity to demonstrate substantive differences between the inappropriateness of Auburndale for the 2006–2007 school year, as determined in the May 2007 Decision, and its appropriateness for the 2007–2008 school year.”

This matter was subsequently reassigned to the Hearing Officer who had issued the 2007 decision. In March 2008, 30 minutes before the hearing was scheduled to begin, the Parent attempted to withdraw her hearing request. Ordinarily, withdrawal of a hearing request prior to commencement of a hearing closes the case without prejudice. See BSEA Rule XVII(E). In this case, however, the district filed a motion to dismiss the case with prejudice, alleging that the Parent had acted in bad faith and that her last-minute withdrawal caused prejudice to the Harwich staff who were present and ready for the hearing. 

The decision on that motion is reported in Harwich Public Schools, BSEA #08-1670, 14 MSER 74 (2008). The Hearing Officer treated the Parent’s notice of withdrawal as a motion to withdraw, which she denied on the grounds that “allowing a party to withdraw a hearing request immediately prior to a hearing without timely notice, and when no agreement exists and a matter remains unresolved, may lead to a prolongation of litigation because a party may refile the matter to obtain a different Hearing Officer.” The Hearing Officer also found that the Parent’s actions constituted a failure to appear at a regularly scheduled hearing, indicative of an intent not to prosecute. She therefore dismissed the case for failure to prosecute, pursuant to BSEA Rule X(F) and 801 CMR 1.01(7)(g)(2). Because she found that the Parent had “failed to establish cause as to why this matter should not be dismissed for lack of prosecution and because this lack of prosecution denies the Student and the school their right to timely resolution to the matter,” she ordered that the dismissal be with prejudice.

Comment:  The Hearing Officer’s frustration with the Parent’s behavior is understandable. We note, however, that BSEA Rule XVII(E) does not require notice or a motion, and that 801 CMR 1.01(6)(g), which the Hearing Officer also cited, would seem to have been explicitly modified by the more specific BSEA rule. If the case was closed without prejudice upon withdrawal, in accordance with BSEA Rule XVII(E), then we question whether there was a proceeding left to be dismissed with prejudice under Rule X(F). Also, it seems strange to cite the Student’s right to timely resolution of the matter as a reason for dismissal with prejudice.  For one thing, the rights of a minor Student are asserted through the Parent, who in this case had sought to withdraw the action. In addition, if the Student does have a separate right to timely resolution, that result will now never be achieved, since the proceeding was dismissed with prejudice.

Motions—sanctions for discovery violations

Boston Public Schools, BSEA #08-3410, 14 MSER 48 (2008)

In this case,[11] a series of discovery disputes resulted in the imposition of sanctions against the school district. The district had failed to respond in a timely manner to the Parent’s interrogatories and document requests, and failed to comply with a deadline for discovery responses imposed by the Hearing Officer. At no point did the district request an extension of time for discovery or issuance of a protective order. The Parent filed a motion to compel, which the Hearing Officer granted in part. When the district then failed to comply fully with that order, the Parent filed a motion for discovery sanctions, pursuant to 801 CMR 1.01(8)(i), seeking to bar Boston from submitting any evidence at hearing.

Although the Hearing Officer declined to prohibit the district entirely from submitting evidence at the hearing, she imposed sanctions that barred Boston from submitting any evidence at all on two of the three school years at issue, and barred the submission of evidence on several important issues (the appropriateness of the peer groups and behavioral programming) with regard to the third. The Hearing Officer began by reciting the history of Boston’s noncompliance with discovery and with the Hearing Officer’s orders. She pointed out that although Boston had asserted objections to some of the Parents’ requests, the objections were conclusory and did not explain why production of the requested information would be unduly burdensome, irrelevant, or privileged. As the Hearing Officer pointed out, “Collecting (and reviewing) discovery takes time and can be expensive and annoying. However, this does [not] automatically make complying with discovery requests unduly burdensome” (emphasis in original). The Hearing Officer also faulted Boston for failing to file a motion for a protective order, stating that a district, “if it has an objection to specific documents or interrogatory questions, must not only inform Parent of their objections, but must also request a Protective Order from the Hearing Officer.” 

The Hearing Officer found that, even where the district had answered interrogatories, the responses were “very general answers that do not indicate why Boston believes its program is appropriate, or how it has delivered appropriate behavioral interventions or programming for [the Student] or the training provided to the teachers in teaching Students” with his disability. She pointed out that Boston had failed to produce certain information that would seem to be readily available, such as three-year program plans filed with the Massachusetts Department of Education, DOE waivers, and documents concerning governmental inspections (all of which, the Hearing Officer pointed out, constitute public information), the Student’s and his teachers’ schedules for the years in question, and information as to what the Student was taught during those years. Boston had failed entirely to produce documents relating to two of the three school years at issue (2005–2006 and 2006–2007), asserting that it had searched for the documents but did not have them. Boston had also failed to offer any explanation as to why it could not produce redacted IEPs of peers.

As the Hearing Officer stated, the Parent, as the party seeking relief, has the burden of showing that the Student’s program is and has been inappropriate. The Hearing Officer found that the Parent therefore “needs information regarding [the Student’s] educational and behavioral programming, the Students that he is and has been grouped with, and the qualifications of his teachers in order to assess her case, and, if appropriate, to proceed to hearing and provide a rebuttal to the School District’s claims.” Because Boston’s failure to provide discovery deprived the Parent of such essential information, the Hearing Officer found that sanctions were appropriate. The Hearing Officer ordered that the district not be permitted to present any evidence regarding the two school years as to which it had failed to produce any information. With regard to the third school year, the Hearing Officer stated that Boston would be allowed to present evidence, but not on the two significant issues as to which it had failed to produce information (the appropriateness of the peer group and behavioral programming).

Comment:  It is heartening to see the BSEA impose discovery sanctions in an appropriate case. Here, the district’s history of dilatory conduct, assertion of boilerplate objections, and failure to provide information that one would expect to be within any district’s custody or control all justify the strong result. 

We do take issue with one aspect of the decision, which is the statement that a party, in addition to asserting objections to discovery, must seek a protective order from the Hearing Officer. This portion of the decision would not seem to be in accordance with BSEA Rule VI(C), which states that a party “may . . .  file with the Hearing Officer objections to the request or move for a protective order” (emphases added).

Eligibility

Agawam Public Schools, BSEA #08-2564, 14 MSER 53 (2008)

The different requirements for a Section 504 plan under the Rehabilitation Act of 1973 and an Individualized Education Program under the IDEA were at the crux of this decision by Hearing Officer Byrne. Section 504 prohibits discrimination against individuals with disabilities by requiring schools to provide reasonable accommodations that will allow a Student with a disability to access the regular programs and services that are available to Students without disabilities. On the other hand, a Student who qualifies for special education under IDEA gets much more than accommodations. A Student on an IEP gets specialized instruction and related services and more procedural rights. But to qualify for an IEP, the Parents must prove that the Student needs specially designed instruction or related services in order to access the curriculum and make effective progress.

In this Agawam case, the Parents (not represented by counsel or an advocate) claimed that this sixth-grade Student was entitled to an Individualized Education Program. The Student’s neurologist diagnosed him with Tourette’s Syndrome, migraine headaches, ADHD, a “probable” learning disability, and “possible” mild obsessive/compulsive disorder. While a learning disability would ordinarily require specialized instruction, the Hearing Officer pointed out that the neurologist made this diagnosis mainly from information provided by the Parents. He did not communicate with the school staff or other educators, and he did not interview or test the Student without his Parents. Although the Parent claimed that Student had a learning disability in math, that statement was called into question when the report of the neuropsychologist made no mention of any specific learning disability or nonverbal learning disability and did not make any recommendations for a specialized curriculum, specialized instructional techniques, or a specialized learning environment. Furthermore, all of the Student’s academic-achievement test results were in the average or above-average range. The neuropsychologist recommended that Student work with a guidance counselor or school psychologist to develop improved coping skills and self-esteem and that he have access to a quiet environment for testing and learning. He also recommended techniques to improve the Student’s organizational skills, such as chunking tasks, providing outlines and notes, extra time for tests and reading assignments, time-management instruction, and occupational therapy.

The district argued that this Student’s disabilities could be accommodated under a 504 plan, and that since he was progressing effectively in the regular-educational curriculum, he did not need specially designed instruction and therefore did not qualify for an IEP. The district accommodated the Student’s disabilities by teaching him in small groups, with teacher-directed instruction, testing modifications, and organizational, behavioral, and attentional accommodations. The Hearing Officer found that the district was correct in its determination that with these accommodations Student could make effective educational progress without specially designed instruction; thus he was not eligible for an IEP. The Hearing Officer found that various procedural violations cited by the Parents were minor and did not deny the Student his FAPE. The one area that the Hearing Officer felt needed further investigation was Student’s chronic failure to complete his homework, which his teachers felt was the single largest factor impeding his educational progress. The Hearing Officer ordered the district to investigate whether there was some emotional or other disability that was preventing Student from completing his homework, and she ordered the district to arrange for a comprehensive, independent evaluation of Student’s current neuropsychological, emotional, academic, behavioral, and medical functioning. She ordered the district to hold another eligibility-determination meeting after receiving the new evaluation, thus leaving open the possibility that Student might qualify for an IEP in the future. .

Comment: This case illustrates the importance of having expert witnesses who understand the precise questions that need to be addressed for a determination of eligibility and who have a good basis for their opinions. While some districts probably would have found this Student eligible for an IEP because of his combination of attentional difficulties, impulsivity, executive-functioning difficulties, occupational-therapy needs, and homework phobia, one cannot help wondering if the district in this case remained firm in denying eligibility because this was the same family that kept Student at home and was demanding home educational services because, as another Hearing Officer found, they did not like the program being offered. That case is discussed below.

Home and Hospital

To receive publicly funded home-tutoring services, Parents must present a written statement from a physician verifying that the child must remain at home (or in a hospital) for medical reasons for not less than 14 school days. The pertinent regulation is 603 CMR 28.03(3)(c). A physician must complete DOE form 28R/3, which is available on the DOE website. The DOE website also includes a useful Question and Answer Guide explaining the requirements to obtain educational services at home or in the hospital due to medical reasons. The physician must state, among other things, the date the Student was admitted to a hospital or was confined to home; the medical reason(s) for the confinement; the expected duration of the confinement; and what medical needs of the Student should be considered in planning home or hospital services. In two cases reported this quarter, school districts challenged Parents’ claims that their children required home tutoring for medical reasons, and in both cases the Hearing Officers found in favor of the districts because the physician statements were not sufficient. Both cases involved 12-year-old boys.

Agawam Public Schools, #08-2564, 14 MSER 36 (2008)
Not only did Hearing Officer Lindsay Byrne find this Student ineligible for special-education services and an IEP (see discussion above), she also found him ineligible to receive educational services at home after his Parents removed him from school due to what they claimed were medical reasons. The Physician Statement was completed by the Student’s pediatric neurologist a day after Parents took him out of school. The physician did not see Student before writing the statement and in fact had not seen him for about three months, at which time he had been in school. In the form 28R/3, the physician stated that, based on reports from the Parents, the boy’s Tourette’s Syndrome and  migraine headaches were being made worse because the school’s program was causing the Student to feel stressed. Therefore the Student would require educational services at home for more than 14 days. After 13 hours of testimony, during which the physician testified that he did not know what the school’s program was, Hearing Officer Byrne held that “the physician statement submitted by the Parents in support of their request [for home tutoring services] does not meet the minimum regulatory standards for public funding of an out-of-school education program.” Specifically, Hearing Officer Byrne found the physician statement (i) does not say that the Student must remain at home, (ii) does not indicate that the child has a new medical condition, treatment, or other identifiable medical reason for not attending school, and (iii) does not report an initial date of confinement or an estimated length of time that the Student is likely to have to remain at home.

Shrewsbury Public Schools, BSEA # 08-2466, 14 MSER 68 (2008)

For similar reasons, Hearing Officer William Crane held that the Physician Statement submitted by the Shrewsbury Parents (who, as in the Agawam case, were not represented by counsel) was not sufficient to prove that educational services had to be provided at home for medical reasons. The 12-year-old boy in Shrewsbury got headaches and stomach aches and was “upset” because, according to what he reported to his mother, another Student had harassed him in math class and the teacher had embarrassed him. When the Student’s mother decided to keep him out of school, the Student’s physician first wrote a note to the school asserting that “[d]ue to the physical and emotional distress caused by the current placement, it is medically necessary that this Student be educated in his home setting in a manor [sic] consistent with his IEP until an appropriate placement is made.” When the district pointed out that the physician had to submit form 28R/3 and substantiate medical reasons that required the Student to remain at home, the physician wrote that “[t]he school district should take into account the emotional distress [Student] has been experiencing due to interactions with school staff, which have contributed to his inability to gain access to the general curriculum and subsequently has had an impact on his academic performance.” The Hearing Officer held that “nothing in [the physician’s] statement comprises a ‘medical reason’ that would require that Student remain at home.”  As in the Agawam case, the Hearing Officer felt that the Parents had a gripe with the program proposed for the Student, including the specific math class and the type and timing of the academic support services. Hearing Officer Crane found that Shrewsbury’s proposed IEP was appropriate with a few minor modifications, but ordered the IEP Team to reconvene to determine if the Student had an emotional impairment and, if so, whether he Student required additional services or accommodations in order to access the curriculum.

Comment: In both of these cases, the Hearing Officers did not find the Parents or the physicians credible in their assertions that medical reasons kept the child confined to home or restricted in any activity. The Hearing Officers in both cases clearly felt that the disputes were really about the programs or services that the districts were offering. Hearing Officer Byrne’s statement could be applied to both cases: “The preponderance of the evidence in this record supports the conclusion that [the Student] is not attending school because the Parent is unhappy with the school program for him.” With a conclusion like that, no Hearing Officer would require the district to provide educational services for the Student at his home.

Residency issue

Freetown-Lakeville Regional School District, BSEA #08-2206, 14 MSER 4 (2008)

The dispute in this case did not involve Parents; it was between the school district and the state Department of Education. At the time of the hearing, the 21-year-old Student had been in a residential school in Waltham for over four years pursuant to IEPs from Freetown-Lakeville. The Student’s mother had lived in Freetown, but she had been evicted two years before the hearing and moved in with relatives in New Hampshire. The Massachusetts DOE ruled that Freetown-Lakeville was still responsible for the Student’s education at the residential school in Waltham, but Freetown filed for a hearing, claiming that the New Hampshire school district should be responsible. Hearing Officer Sara Berman upheld the DOE’s determination that Freetown- Lakeville remained responsible because the Student was an adult and should be considered homeless, and homeless Students, pursuant to the federal McKinney-Vento Homeless Assistance Act (42 USC s. 11431), are entitled to continue attending school in the district where they attended before becoming homeless or to attend in the school district where they are temporarily living. The Hearing Officer held that “[b]y electing to continue in the school program provided by her district of origin, Student effectively perpetuated her ‘last’ school district before becoming homeless as Freetown-Lakeville.” The Hearing Officer held that the residence of Student’s mother was not relevant because Student was an adult and was therefore entitled to make her own educational decisions.

Discipline and dangerousness

The IDEA provides that a special-education Student who violates the school’s code of conduct may not be suspended for more than 10 days until the IEP Team determines whether the Student’s conduct was directly related to his/her disability. If the conduct was not a “manifestation” of the Student’s disability, the school can discipline the Student in the same manner as it would discipline a non-disabled Student, which could include a suspension longer than 10 days (although the district must continue to provide sufficient services to enable the Student to progress on the goals in the IEP). If the misconduct is determined to be directly related to the Student’s disability, however, the school district cannot suspend the Student for more than 10 days because to do so would constitute a change in placement. The Student must be returned to the placement specified in the IEP unless the district can prove to the BSEA that a 45-day interim placement is necessary because returning the child to the placement “is substantially likely to result in injury to the child or to others.”

Milton Public Schools, BSEA #08-2284, 14 MSER 18 (2008)

In this case a 15-year-old ninth-grader who was on an IEP for an emotional disability had an “altercation” with a teacher in June of his ninth-grade year, and the district suspended him “indefinitely.” In September the IEP Team conducted the required manifestation hearing and determined that the Student’s altercation with the teacher was a manifestation of his disability. However, instead of returning the Student to the placement from which he had been removed or requesting that the BSEA order a different placement for safety reasons, as required by law, Milton simply refused to allow him to return to school. When the Parents filed a hearing request with the BSEA in November, Milton acknowledged that it had violated the law and agreed that it was liable for two months of compensatory services for excluding the Student for more than two months. The Parents, however, asked the BSEA for more than compensatory services under the IDEA. The Parents claimed that they were entitled to a tort remedy, presumably money damages, pursuant to a Massachusetts statute, G.L. c.76, s.16, which states that if a school unlawfully excludes a Student, the Student may recover “in tort,” meaning money damages, from the school district.

While the Massachusetts statute may well give the Parents the legal authority to obtain a money judgment against Milton for wrongfully excluding their child from school, that statute is not a special-education statute and therefore the BSEA does not have jurisdiction to award money damages to the Parents. Hearing Officer William Crane pointed out that the Parents could file their case for money damages under the statute in court, and granted the district’s motion to dismiss that particular claim.

Comment: This holding is consistent with other decisions of the BSEA which state that the BSEA cannot award money damages for violations. The BSEA can, however, award compensatory services if a district’s violations have caused the Student to suffer a substantial deprivation of educational benefits, and the BSEA’s authority to award equitable remedies often involves payment of money as reimbursement to the Parents, as well as non-monetary compensation in the form of services and accommodations to compensate for services that had not been but should have been provided.

Braintree Public Schools, BSEA #08-2415, 14 MSER 62 (2008)

Unlike the Milton Public Schools, above, when Braintree wanted to suspend a first-grader whose misconduct was a manifestation of his disability, the district followed the correct procedure and filed for an expedited hearing at the BSEA, requesting a 45-day Interim Alternative Educational Setting (IAES) on the basis that returning the child to school would be “substantially likely to result in injury to the Student or to others.” The young child had pushed, tripped, and punched other children and threatened them with scissors. He had also threatened to jump out the window when he was told he was being suspended. The district wanted the interim placement to be at the South Shore Collaborative. The Parents attempted to rebut the district’s evidence with testimony from the child’s clinical psychologist, who testified that the Student could be educated in a regular-education classroom if the teachers were better trained in how to help the Student avoid oppositional behaviors. Unfortunately the psychologist had reviewed no school records or evaluations, had not spoken with any of the school staff who had worked with the Student, and had reached his conclusions and recommendations about Student’s behavioral difficulties based only on information provided by the Parent and Student. Not surprisingly, Hearing Officer William Crane found that the Parent’s expert “did not have sufficient factual information to render a credible expert opinion regarding the appropriateness of Student’s continuing to be educated within a regular-education classroom at the present time.”