INTRODUCTION

            The second quarter was again relatively quiet for the BSEA.  Overall, the hearing officers issued ten rulings and three decisions.  All three decisions, Framingham, Pittsfield, and Greater Commonwealth Virtual School, are discussed in detail within this commentary.  While the parent in Framingham received substantial retroactive relief (i.e., tuition reimbursement), she did not succeed in obtaining prospective relief (i.e., the student’s ongoing placement within a private program).  Both Pittsfield and Greater Commonwealth Virtual School involved successful efforts by each district in obtaining substituted consent to conduct the evaluations that they had sought.  As always, the rulings addressed an array of topics, including discovery, stay put, and case procedure.  One ruling, Franklin, contains an interesting discussion about the scope of a parent’s right to observe proposed programs, under the State’s so-called observation law and general discovery principles.  Spoiler: when parents are engaged in litigation, their right to conduct a program observation may be even broader than that afforded them under the already favorable-to-parents observation law.

PARTIAL WIN FOR THE PARENT IN FAPE DISPUTE

Framingham Public Schools, BSEA No. 2312178, 30 MSER 65 (Mitchell, April 5, 2024) concerned the appropriateness of various iterations of the district’s proposed inclusion programs for a student who had been unilaterally placed by the parent at Learning Prep School (“Learning Prep”) for his sixth grade school year.  Relevant to this discussion, the student had specific learning disabilities in reading, writing, and math.  From kindergarten through December of his fifth grade year, the student, a native English speaker, participated in a dual language (Spanish-English) program at Framingham’s Barberi Elementary School (“Barberi”).  After his transfer from Barberi, the student completed fifth grade within an English-only program at Framingham’s King Elementary School (“King”).  Throughout the spring of the student’s fifth grade year at King, his IEP Team proposed programs that progressively eliminated the student’s pull-out academic services, replacing them with inclusion academic services, and entirely eliminated the student’s pull-out reading services.  On the basis of two private neuropsychological evaluations, which recommended the student’s placement within a substantially separate language-based program, the parent placed the student at Learning Prep, a school designed for students with intense language-based learning needs.  In the fall of the student’s sixth grade year, after he had successfully transitioned to Learning Prep, Framingham proposed an IEP that restored many of the student’s pull-out academic services that it had eliminated over the course of his fifth-grade year, within the context of a full inclusion placement at Framingham’s Fuller Middle School (“Fuller”).

The hearing officer concluded that the parent met her burden to show that (1) the student’s fifth grade IEPs, including the IEP in place at the time that the student was unilaterally placed at Learning Prep, were not appropriate for the student; and (2) the student’s program at Learning Prep was proper, thereby entitling the parent to reimbursement of Learning Prep tuition through the date of the decision.  The hearing officer further concluded, however, that Framingham’s sixth grade IEP cured the deficiencies in its previous proposal, rendering it appropriate; therefore, the parent was not successful in demonstrating that the student required ongoing placement at Learning Prep.

Although the parent proved her claim for retroactive relief – a conclusion that the hearing officer appeared to reach somewhat begrudgingly – the parent’s experts were discredited at nearly every turn.  While difficult to discern any prevailing reason, the hearing officer took issue with the parent’s neuropsychological and academic evaluators’ not having observed the student within King or Learning Prep.  The parent had retained a third educational expert to observe the student at Learning Prep, but that expert observed neither King nor Fuller.  Had that educational expert observed the Framingham programs, we question whether the hearing officer would have continued to discredit the evaluators for not having themselves conducted observations.  Often, it is not practically or financially feasible for a parent to have multiple experts conduct observations of the same programs.  It is critical, however, that a parent obtain observations of the programs that it is challenging as inappropriate (here, King and Fuller).  The hearing officer took further issue with the parent’s neuropsychologist’s interpretation of the student’s standardized test scores and his opinion on the student’s progress, in part due to the fact that the measurements administered were not normed for dual language learners.  However, the parent’s neuropsychologist’s testimony did not appear to be challenged by Framingham or rebutted by another appropriately qualified expert; rather, the hearing officer seemingly engaged in her own data analysis, untethered to record citations, and failed to grapple with the expert’s own explanation of the impact of dual language learning on the student’s deficits.

Given that the hearing officer rendered her decision in April, with approximately two months left in the school year, the parent was forced to either retain the student at Learning Prep at private expense or immediately enroll him at Fuller – a dilemma for a parent who had been successful in demonstrating that the program proposed for the student at the beginning of the school year was, indeed, inappropriate.  While the hearing officer expressly considered the student’s general ability to easily transition between programs due to his strong social skills, as evinced by both his good transitions to King and Learning Prep, her analysis does not consider the student’s specific ability to transition to a new program with mere weeks remaining in the school year.  Although the hearing officer ordered the district to reconvene to discuss the student’s transition to Fuller within fourteen school days (punctuated, certainly, by April vacation), she also contemplated that the student may require further assessment and services to support his transition (efforts which, certainly, would take even more time to execute and arrange, against an already ticking clock).  As a practical matter, we do not see the equity in forcing the student to enter a new program at the conclusion of a school year, even considering his sociability, when it was the district’s failure to have proposed an appropriate program for him in the first place.  Ultimately, while the parent appeared to have won the battle, she unfortunately lost the war.

PARENTS’ EXPERT’S SCHOOL OBSERVATION ORDERED EVEN AFTER THE FAMILY HAS LEFT THE DISTRICT

Franklin Public Schools and Carly, BSEA No. 2412891, 30 MSER 140 (Reichbach, June 30, 2024) involved a motion to allow an observation of Franklin’s program subsequent to the parents’ hearing request for reimbursement.  The student was unilaterally placed at the Carroll School for the 2023-2024 school year, her third grade year.  The parents moved to Acton and enrolled student in the Acton Public Schools in November 2023.  When the parents requested in March 2024 that Franklin allow the parents’ expert to observe Franklin’s program, Franklin denied the request, partly on the basis that the prior IEP (11/09/22 to 11/8/23) had expired and the program the parents sought to have observed was no longer the student’s proposed program since Franklin no longer bore programmatic or financial responsibility.

Massachusetts’s “observation law”, M.G.L.ch. 71B, §3 provides:

To ensure that parents can participate fully and effectively with school personnel in the consideration and development of appropriate educational programs for their child, a school committee shall, upon request by a parent, provide timely access to parents and parent-designated independent evaluators and educational consultants for observations of a child’s current program and of any program proposed for the child, including both academic and non-academic components of any such program. Parents and their designees shall be afforded access of sufficient duration and extent to enable them to evaluate a child’s performance in a current program and the ability of a proposed program to enable such child to make effective progress. School committees shall impose no conditions or restrictions on such observations except those necessary to ensure the safety of children in a program or the integrity of the program while under observation or to protect children in the program while under observation or protect children in the program from disclosure by an observer of confidential and personally identifiable information in the event such information is obtained in the course of an observation by a parent or a designee.

The implementing regulation, 603 CMR 28.07(1)(a)(3), provides parents with “the right to observe any program(s) proposed for their child if the child is identified as eligible for special education services.” This right is framed within the context of informed consent for evaluations and placement; it allows parents to observe a program before they decide to place their child in that program.

Employing statutory interpretation, the hearing officer noted that although “proposed program” in the observation law refers to a program that is currently under consideration for a child, it is not entirely clear and unambiguous in that meaning. Similarly, the CMR and DESE guidelines relating to observations do not support the demand for observation of a program that had been proposed in an expired IEP.

However, the BSEA, adjudicatory, Massachusetts and federal court discovery rules, allow for broad discovery of matters, including testing and examining objects and property, that are important in evaluating and resolving the issue unless that discovery invades some privilege or presents an undue burden on the side from which discovery is sought. Given that neither was the case here, the observation of Franklin’s third-grade program was allowed because it touched on the key issue in the case – the appropriateness of the program – and its value outweighed any purported burden to the school district.

THE DISTRICT OBTAINS SUBSTITUTED CONSENT FOR EVALUATIONS TO AVOID A DENAIL OF A FAPE

Greater Commonwealth Virtual School, BSEA No. 2411692, 30 MSER 144 (Kantor Nir, June 20, 2024) involved a school seeking substituted consent for long sought evaluations of the student.   The eight grader had learning disabilities and had been at the school for six years. The parent had refused to consent to any evaluations of the student since March 12, 2018.  In further examples of the parent’s lack of collaboration with the school, the parent had only attended two Team meetings during the student’s matriculation there, and the parent’s email, text and in-person/phone communications with various school staff were “volatile,” “aggressive,” and “threatening.”

On May 2, 2024, the Team reconvened without the invited parent for an annual Team meeting. The Team expressed concern that the proposed IEP was no longer be appropriate for the soon-to-be high school student and additional testing was needed to assess the student’s current needs.  The parent failed to respond to the IEP generated by the Team and continued to refuse to consent to the school’s proposed evaluations. In refusing the latest request for evaluations, the parent stated, without sharing any details, that the student was undergoing a private evaluation which would be shared whenever it was completed.

Massachusetts law allows for substituted consent for evaluations only where the school demonstrates that an evaluation, other than an initial evaluation, is necessary for the school to provide a FAPE. In these circumstances, the district may proceed to the BSEA for a hearing and if they satisfy their burden of proof that the parent’s failure or refusal to consent will result in a denial of a free appropriate public education to the student, obtain an order for substituted consent. 603 CMR 28.07(1)(b). Even if the parent is in the process of obtaining a private evaluation of their child, it is well established that the school has the right to conduct its own testing utilizing its own evaluators.  Clearly here the inability to have any evaluations for six years and at a time when the student is transitioning to high school significantly undermines the school’s ability to develop an appropriate IEP for the student. As we often advise parents, it is important to be reasonable in their dealings with the school, something that not only inures to the student’s benefit but will also cast them in a favorable light if they find themselves before a hearing officer. It is reasonable to ask the school to postpone their evaluations until a private one is done.  However, in that situation the parents would be well-advised to provide specifics about the private evaluation, consent to the school’s evaluations, and simply ask that they occur after the private testing.