The following article first appeared as a quarterly commentary in Massachusetts Special Education Reporter (MSER), a publication focusing on the decisions of the Massachusetts Bureau of Special Education Appeals.

Commentary on Massachusetts Special Education Decisions: 2nd Quarter, 2008, by Daniel T.S. Heffernan

This quarter’s decisions reiterate the importance of well established principles in special-education litigation: the burden of proof on Parents in challenging the appropriateness of public-school programs; the need for well-founded expert support in those challenges; and the significance of procedural deficiencies when they result in substantive denial of appropriate services. However, this quarter’s decisions also involve emerging and/or unusual issues: the adequacy of post-secondary programs; the possible role of environmental factors in the provision of FAPE; and the BSEA’s role in a civil-rights and tort action for damages.

Unhealthy environment

An emerging issue—a Student’s purported inability to attend school because of physical sensitivity to the building environment— intersected with a well trod issue—burden of proof— in Hampden-Wilbraham Regional School District, BSEA #07-5701, 14 MSER 115 (2008). The 18-year-old Student in this case had allergies and asthma that her physician described as being in the “top 5% in terms of severity of all the patients he has seen.” The Student was on a 504 plan that sought to accommodate her allergies and asthma, but she still missed much school and for a significant time period was tutored at home. Her attempted return to school in fall 2005 was “miserable,” and apparently her asthma and allergies were so debilitating that she could not even partake in home tutoring. The Parents claimed that she had multiple chemical sensitivities and could not return to the district’s Minnechaug High School (“MHS”). Meanwhile, the Student had toured Wilbraham & Monson Academy without experiencing any chemical problems, and the Parents unilaterally placed her there and thereafter sought funding for that placement.

In finding that the district’s 504 plan was proper and had indeed offered FAPE, the Hearing Office relied on several significant fact patterns. First, the Parents had failed to provide sufficient expert support for their claim that the high-school building was problematic. Two of the Student’s treating physicians never stated that she was incapable of attending MHS; there was no history of any significant complaint regarding the school’s physical environment; and an inspection by the state Department of Public Health yielded no significant problems with the school environment. Indeed, the Student had successfully taken the three-hour PSATs in a filtered and ventilated gallery at the high school where she was to receive much of her instruction, and she experienced no problems there. The Parents relied on the support of one “expert,” but he was not an expert in environmental matters, had not conducted any testing of MHS, or even visited the school, and did not testify at hearing. In addition, Wilbraham & Monson Academy, where the Parents had made a unilateral placement, was not in any significant way environmentally different from MHS, and provided no physical accommodations at all to the Student. By comparison, the school district had offered an array of accommodations, going well beyond those recommended by her treating physicians.

You’re not expelled or suspended, just “unenrolled”

Springfield’s policy of “unenrolling” students following significant absenteeism, regardless of students’ special-education status, was challenged in Springfield Public Schools, BSEA #06-4908, 14 MSER 149 (2007). Springfield’s policy, modified in certain respects over the relevant years, provided that any student who was absent for 10 days or more and whose parents did not respond to a request for a meeting were automatically and unilaterally “inactivated.” To re-enroll, parent and student had to appear at the Parent Information Center with certain documentation and wait two weeks or more for re-enrollment processing. Among all of Springfield’s public schools, there was no system-wide coordination of this policy, and no uniformity as to how the policy was implemented. Special-education students, including the high-school twins involved here, were not treated any differently from other students. The policy was purportedly modified for the 2006–2007 school year such that truant special-education students were “red-flagged” and referred to the special-education department.

The Hearing Officer answered the question of whether unilateral, administrative “unenrollment” is a “change of placement” triggering the procedural and substantive protections of IDEA and MGLc.71B with a resounding “yes.” Springfield’s unsuccessful argument that unenrollment was merely a clerical procedure that did not change the placement was brushed aside, where Springfield did not demonstrate any ongoing commitment to meeting the educational needs of unenrolled students. Rather, the unenrollment policy was held to be the functional equivalent of termination of a special-education program and placement. In this case, the evidence showed that the twins’ “unenrollment” had a significant impact on them. After a period of truancy, they could not simply return to school, but rather had to complete a significant reenrollment process. Further, there were failures on the part of the district to conduct Team meetings and to update IEPs, causing the Hearing Officer to remark: “The extent of procedural noncompliance in this matter is startling.” The Students’ unenrollment resulted in “immeasurable deprivation of substantive educational benefit,” entitling them to extensive compensatory educational services, including a full school year of compensatory services and the possibility that their eligibility might need to be extended beyond age 22.

Challenging an unestablished post-secondary program

The pro se Parents in Melrose Public Schools, BSEA #08-4385, 14 MSER 160 (2008), challenged the sufficiency of Melrose’s yet-to-be-established post-secondary program for their 18-year-old son. Instead they wanted the Student to attend the vocational program run by the LABBB Collaborative. 

As a preliminary matter, it is essential to a successful challenge for the Parents to appreciate that they have the burden of proof in establishing a program’s inadequacy, and doing so with expert testimony. Here, the Parents presented no testimony, live or documentary, evaluating the proposed program. In addition, it is instructive to note that simply because a program is nascent or not yet fully established does not per se render it inadequate. In this case, there was sufficient evidence of the strong qualifications of staff who were going to administer the post-secondary program. In addition, the Parents’ argument that the post-secondary program would be simply a rehash of the program the Student was in was unpersuasive. That program contained many of the elements needed in a post-secondary program, had been favorably evaluated by two outside collaboratives, and had enabled the Student to make significant progress.

When does stay-put attach?

The central question in Randolph Public Schools, BSEA #08-0925, 14 MSER 136 (2008), was whether stay-put attached to a placement where the Student attended for just one day and in regard to which the parties never executed a final settlement agreement.  This 18-year-old Student had a language-based learning disability and later-emerging bouts of depression, significant enough to cause the Student to take a medical leave from school. The parties had been cost-sharing Student’s residential placement at the Winchendon School, a private regular-education school, but agreed that the Student needed an out-of-district placement at a therapeutic school. The parties agreed to placement at the Victor School, a private, Chapter 766–approved day school. The Parents signed the placement page of the IEP, and both parties contemplated that an IEP would be fully developed once the Student matriculated at Victor; a Team meeting was scheduled for March 29, 2006, to that purpose. On March 24, 2006, the Student, who had never wanted to leave her residential placement at Winchendon, attended her first day at Victor. The day was a “nightmare,” according to Student and her family, and she returned to the Winchendon School the following week, never again attending Victor. Parents wrote to Randolph formally rejecting the proposed IEP for Victor. The parties met, and Parents requested funding for Winchendon. Randolph proposed a new IEP calling for placement at the South Shore Collaborative. Parents did not sign this or the following year’s IEP for that placement. The Student struggled at Winchendon, withdrew in April 2007, and finally graduated after the 2007 summer term.

The Parents did not pursue a claim for reimbursement for Winchendon based upon a traditional unilateral-placement, self-help basis. Instead, they took the tack that the “stay-put” placement was Winchendon because no formal agreement had been signed for Victor, no IEP at Victor had been fully developed or signed, and the Student had attended Victor for only one day.   

The Hearing Officer held that the Student’s stay-put placement was indeed Victor. None of the parties had considered Victor to be a temporary or trial-basis placement. The Parents had signed the placement page and the parties’ attorneys had drafted an accurate recitation of the parties’ agreement. The Hearing Officer applied a “bright line” that the placement at Victor became “current” for stay-put purposes when the Parents accepted it, and it did not depend on how long it was in effect or for how long the Student attended the program. Parents, who bore the all-important burden of proof, could cite no cases, statutes, or regulations supporting their claim that such a “midstream” rejection of placement would allow it to invoke stay-put for a prior placement. 

The Hearing Officer also noted that a reimbursement claim for unilateral placement by the Parents would have been difficult to mount. Both parties had been in agreement that Winchendon was inappropriate for the Student, and Parents offered no challenge to the appropriateness of the South Shore Collaborative.

Reimbursement for private evaluations

The Hearing Officer in Boston Public Schools, BSEA #08-4873, 14 MSER 127 (2008), provides a detailed analysis of the steps a Parent must take to get reimbursement for an independent evaluation and at what rate it should be. The decision contains a detailed recitation of statutes and regulations outlining the specific rights and obligations of the Parents and school district regarding independent evaluations. Those regulations discourage delay by school districts in responding to requests for independent evaluations by requiring them to respond to a proper request within five school days or be liable for reimbursement. In this action the Parents made three requests for independent evaluations. Their first request, for an independent educational evaluation, did not entitle them to reimbursement because in their request they did not provide the information required pursuant to 603 CMR 28.04(5)(e), such as the list of procedures and assessments to be used to evaluate the Student or sufficient details about the evaluator’s qualifications. The second request, for an independent speech and language evaluation, failed for similar reasons. The third request, for an independent neuropsychological evaluation, was successful because, although the Parents used the wrong form, the required information about the evaluation and evaluator was presented to Boston. Boston failed to provide a list of psychologists who would perform an evaluation at rate-setting rates; it also did not agree to pay for the evaluation, or file a hearing request within five days. The Hearing Officer ordered Boston to reimburse for the actual cost of this evaluation, not at the rate-setting rate.

Parent unsuccessfully challenges the need for an extended evaluation

The nine-year-old Student in Andover Public Schools, BSEA #08-4981, 14 MSER 108 (2008), had an underlying diagnosis of language-based learning disability and auditory working-memory issues. In addition, he had exhibited very difficult behavior in his current and prior school districts, which had resulted in his making limited progress in school.  The extensive evaluations conducted on the Student failed to yield a specific etiology for the behaviors. The school district, consistent with the outside evaluation done by Children’s Hospital Medical Center, recommended an extended evaluation at an out-of-district therapeutic program as a means to obtain an accurate assessment of the Student and what program would be successful. The pro se Parent would not consent, fearing that the Student would pick up inappropriate behaviors at such a placement and be labeled a “bad kid” by others. She even stated that she would move again to another school district to keep him in public school. The Hearing Officer found that the extended evaluation was essential and appropriate for the Student and represented the least-restrictive environment for him. The Hearing Officer outlined the steps the school district could take in a superior-court action to force this placement.

Providing foreign-language translation essential

The Hearing Officer in Springfield Public Schools, BSEA #08-3378, 14 MSER 98 (2008), addressed a motion to dismiss and a summary-judgment motion addressing the requirement of Spanish-language translation in the special-education process for a chronically truant special-education Student. Student’s Educational Surrogate Parent (“ESP”) argued that Springfield had failed to provide the Parent, who was Spanish-speaking, with a Notice of Procedural Safeguards, written notices of meetings, or an IEP in Spanish. The district argued that it had provided translators at all Team meetings and communicated orally with the Parent in Spanish. It further argued that the Parent understood the process and simply chose not to involve herself in the special-education process or education of the Student. On the record before her for Springfield’s motion to dismiss, the Hearing Officer held that IDEA clearly requires informed consent, and in this instance it could not be established that Parent gave such to IEPs and the like without having notices, IEPs, and procedural rights provided to her in Spanish. Therefore, the motion to dismiss was denied.

The ESP brought a summary-judgment motion on the grounds that Springfield was required to reconvene the Team in light of Student’s truancy and its failure to do so caused the Student not to make effective progress. Therefore, the Student should be entitled to compensatory services. The Hearing Officer held, again on the limited record in front of her on a summary-judgment motion, that there was no requirement that Springfield reconvene a Team to address absenteeism unless it is related to the Student’s disability. The ESP failed to carry the burden of proof at the summary-judgment stage that Student’s absenteeism emanated from his disability, or that Student failed to make effective progress as a result of his absenteeism. Therefore, the summary-judgment motion for compensatory services was denied.

The BSEA role in damages claims for civil-rights and tort violations

Three cases alleging abuse and neglect of students in a special-education classroom were consolidated and two prehearing decisions concerning the complex issue of the role of the BSEA in those proceedings were issued in Mashpee Public Schools, BSEA #08-0998, 14 MSER 143 (2008) and 14 MSER 156 (2008).[1] The underlying matter involved three eight- to 10-year-old Students with autism-spectrum disorders in a special-education program at the Quashnet School in Mashpee (the “Quashnet Program”). The Parents of the Students alleged, supported by a DSS investigatory report, that the Quashnet Program teacher was physically abusive toward one of the Students during the 2005–2006 school year. The teacher allegedly would drag and push the Student into a time-out area consisting of two moveable bookcases angled to enclose him, poke, kick, and hit him, and scream at him. The other two Students were traumatized by witnessing this and by being in this abusive environment for many months, and lived in fear of the teacher. The Parents further alleged that numerous other Mashpee employees and representatives knew of these occurrences, but failed to stop them until a 51A report was filed, in February 2006, arising out of an injury the Student received, allegedly at the hands of the teacher. Parents’ damages claims were brought under Section 504 of the Rehabilitation Act of 1973, 29 USC §794; the Americans with Disabilities Act, 42 USC §§12101 et seq. (“ADA”); 42 USC §1983; Article CXIV of the Massachusetts Constitution; the Massachusetts Civil Rights Act; Title IX, 20 USC §1681; intentional infliction of emotional distress; and negligence based on Mashpee’s knowledge of and willful failure to detect, prevent, and appropriately respond to the abuse and neglect visited upon the Students. The matter was continued several times while the Parents and Mashpee’s insurance company attempted unsuccessfully to resolve the matter. 

The Parents brought the action to the BSEA because of the “exhaustion” requirements of the IDEA and court decisions interpreting the requirement that disputes arising out of the provisions of special-education services must first be brought to the BSEA before proceeding to federal or state court. In some of those decisions, courts had dismissed actions that were not first fully litigated at the BSEA, even if the claim was solely for monetary damages and did not involve claims brought under the IDEA. The primary focus of the Hearing Officer’s decisions related to the scope of the hearings before him and the parameters of his decision. 

In a detailed and in-depth analysis, the Hearing Officer held that the BSEA clearly had jurisdiction over the 504 and ADA damages claims. The Hearing Officer also held that the Parents’ remaining claims were not subject to the exhaustion requirement of the IDEA, although he conceded the dynamic nature of this area of the law and that a later reviewing court might hold they were subject to exhaustion requirements. All of the legal claims arose from virtually the same underlying facts. Therefore, judicial and administrative economy argued in favor of the Hearing Officer establishing a complete factual record relating to all of the Parents’ claims. Although the issue has not been clearly settled by courts, certain court decisions, such as Frazier v. Fairhaven School Committee, 276 F.3d 52 (1st Cir. 2002), extolled the value in having before the courts a full factual record established by a BSEA Hearing Officer experienced in the area of special education. Therefore, the Hearing Officer held that because the BSEA’s jurisdiction over special-education disputes is sufficiently broad, the fact-finding role may be utilized even without IDEA claims, and because all of the claims arose from the provision of special-education services, the hearing would extend to fact-finding on all of the Parents’ claims. The Hearing Officer would, however, refrain from deciding issues of liability for money damages.[2]

Conclusion

Through these decisions, the BSEA continues to reinforce well established principles in ruling on challenges to school programs and policies. It has also given insight into how it addresses challenges to system-wide policies, such as those relating to truant Students. In addition, it has given valuable guidance into its role in civil-rights and tort actions arising in the context of special-education programs.

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1.  The Parents were represented in this matter by Daniel T. S. Heffernan, the author of this Commentary, and Michelle Moor, of Kotin Crabtree and Strong.

2.  On the day before the two-week BSEA hearing was to begin, Mashpee’s motion for a preliminary injunction in state superior court seeking to limit the scope of the BSEA hearing and decision was denied. The claims were subsequently settled.

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