INTRODUCTION

Seven decisions and five rulings from the BSEA’s first quarter of 2014 are discussed in this Commentary. The matters include routine issues involved in placement disputes, including burden of proof, defining effective progress, the importance of data-based expert testimony, and a district’s obligation to exhaust options of in-school supports and accommodations before recommending a more restrictive setting. Other matters involve standards for interpreting mediated agreements, compliance disputes, and a school district’s responsibility based on the residence of the parent or legal guardian. Of note, several decisions this quarter involve students with substance abuse issues (Milford, Billerica). Our review of these matters leads us to urge that heightened attention be paid to a district’s child find obligations when substance abuse and/or mental health issues arise for students not yet on IEPs. Two decisions reported here examine the question of when a district is required to provide for a residential placement (Agawam, Weymouth). Both matters involve young students with significant mental health issues and are illustrative of the particular complexities and relative unpredictability of outcomes in this area of special education law. Also notable are two cases involving long-standing and contentious disputes where the relationship between the parties has broken down and where the parents’ lack of cooperation with the districts’ steps to explore potential outside placements effectively strips them of standing to complain about the results (Andover, Quincy). Finally, in a case of first impression, the hearing officer considered a school district’s responsibility to transport a student attending a Recovery High School (Billerica). The hearing officer found the district was not responsible for transportation at this time, though later developments around a disputed IEP could alter the situation. The case exposes a significant omission in the legislation establishing the Recovery High School option: transportation is not required, leaving students whose IEPs do not provide for transportation and who cannot otherwise get to such a program high and dry.

 Parents Prevail In Securing a Residential Placement for a Student with Significant Behavioral Difficulties

The severe behavioral issues and educational needs of an extremely compromised eleven-year-old with Autism and a rare genetic X Syndrome could only be properly addressed through an “around-the-clock” residential educational placement, according to the hearing officer in Agawam Public Schools, BSEA #1403554, 20 MSER 1 (January 16, 2014, Crane). He concluded that a residential program was appropriate for the student because his dangerous behaviors and two psychiatric hospitalizations prevented him from progressing effectively in a day program, even with extensive home supports. Finding no other way to provide the student FAPE, the hearing officer instructed the district to immediately locate an appropriate residential placement for the student before his release from the hospital.

The student’s disabilities severely impacted him in all areas of functioning and learning. He was extremely limited in his communication and significantly compromised in his self-care and daily living skills. As a result of his disabilities, he exhibited aberrant behaviors both at home and at school. The hearing officer credited the testimony of his parents regarding the severity and dangerousness of student’s behavior.

When the student’s self-harming and bolting behaviors escalated in the fall of 2012, his parents requested that the district place him in a residential program due to their concern that he required more intensive and highly structured services to make appropriate educational progress. The district declined and instead offered to increase the student’s home services and consultations. Despite the additional supports, in the fall of 2013 the student was admitted to a hospital psychiatric unit for thirteen days due to extremely dangerous behaviors. Two months later, the student was re-hospitalized on a locked psychiatric unit after extreme self-injurious behaviors continued unabated for three days. Following the second hospitalization, the district proposed placement in another day program with extended day services and home consultation. Thereafter, his parents filed for due process.

Generally, a district is required under the IDEA to place a student with a disability in the least restrictive environment that will enable the student to make meaningful progress in both his academic and his social/emotional skills. In some cases a district must place a student in a more restrictive environment if the student’s behavioral issues cannot be sufficiently addressed to allow him to participate effectively in his educational program. Here, the hearing officer noted that the student’s behavioral issues had escalated to such an extent that unless appropriately addressed, his behaviors would effectively preclude his accessing and progressing in his educational program, especially if he was removed due to another hospitalization.

With respect to the dispute over student progress, both the parents and the district had retained experienced, sophisticated experts to review and analyze the data. While the experts did not necessarily disagree on the student’s lack of progress, they did disagree on whether this progress could be increased significantly without a residential placement. The hearing officer found the student’s expert testified convincingly that in order to make an appropriate level of progress, student’s educational services needed to be comprehensive, highly structured, and delivered in a consistent manner across environments in a coordinated and systemic fashion.

The hearing officer found no evidence that the district’s proposed services and placement could enable student’s behavior at home and in the community to be safely, effectively, and appropriately addressed. Nor was there any evidence that any modification of the student’s program, short of residential services, could provide sufficient structure, supervision, and intensity to address student’s unsafe behaviors in a consistent manner. He noted that the parents were “incredibly devoted” and a residential placement was not being sought to remedy a “poor home setting.” The hearing officer found student’s behavioral deficits were not “separate and distinct” from, but rather “inextricably intertwined” with his learning needs and were presently his most critical educational need.

The hearing officer noted the need to “proceed cautiously” in light of the student’s age (11 years old), the impact of removing the student from the family where he may never return home again, and the likelihood that that such a placement would include students with substantial behavioral difficulties. He found that addressing student’s aberrant behavior across all environments and activities of the student’s day—school, home, and community—was essential in order for the student to be available for learning and to make progress. His maladaptive behaviors had become extremely unsafe, requiring constant supervision, and even with this supervision, student presented a substantial risk of harming himself or others.

For parents and advocates, this well-reasoned decision provides a useful insight into the complex intersection between children’s mental health and learning needs when the student’s behavioral/emotional profile and his learning needs are “inextricably intertwined.” As always in these matters, exemplified here and in the Weymouth decision noted below, credible, well-founded expert testimony is essential (though not always sufficient) to persuade a hearing officer of the need for a residential placement—by definition, the most restrictive of options provided for under IDEA.

Extended Evaluation Ordered: District’s IEP Insufficient, but so was the Parents Case for a Residential Placement

In Weymouth Public Schools, BSEA #1400689, 20 MSER 25 (February 6, 2014, Putney-Yaceshyn), the hearing officer ordered a 45 day extended evaluation at a residential program, which neither the parents nor the district was requesting. Although the hearing officer found that the proposed IEP was not appropriate, she also found that the parents had not made the case for a residential placement.

The case involved an autistic ten-year-old who exhibited dangerous behvaviors at home and suffered from sleep deprivation. The key areas in which the student most urgently needed to progress involved his functional and daily living skills. An extended evaluation was ordered to determine if a residential placement was necessary and what services would ensure the student’s safety and address his sleep disorder.

The hearing officer found that the student’s behaviors had become exceedingly difficult for his parents to manage at home. He often woke in the middle of the night, engaging in constant verbal stimulation and maladaptive behaviors, turning lights on and off, making loud pitched noises and waking the entire family, breaking numerous household items, sitting on the stove top and lighting the burners, opening keyed deadbolts, and going outside. He was not independent with any daily living skills, and if left momentarily unsupervised, he would wander around the house and engage in unsafe behavior. The student assaulted and threatened his family members such that his parents lived in separate residences to enable the student’s sibling and one parent to sleep at night. The parents sought a residential placement to address student’s escalating behaviors and lack of consistent progress in safety skills, activities of daily living and sleep. As described in Agawam, the parents’ had to prove that these issues were so “inextricably intertwined” with the student’s ability to access his education that a residential placement was the only way that the Student was going to make meaningful progress academically, socially and emotionally.

The hearing officer found that the district’s proposed IEP, did not adequately address the student’s sleep disruption, nocturnal wandering and resulting safety issues, despite recognition that the student’s inability to sleep at night posed a significant safety risk and a likely impediment to his ability to learn during the day after not sleeping the night before. Also, the IEP proposed no plan to ensure carry-over from the day program to the home. She noted that although it might be theoretically possible to modify the IEP to make it appropriate, it was not clear that modifications could be made quickly enough to address significant safety concerns and the risk of the student harming himself outside of school.

The hearing officer pointed out that no one from the district had recommended or arranged for an overnight observation to address parental concerns and that the district had not undertaken any assessment of student’s sleeping difficulties. Although multiple school witnesses testified that parents should access outside services, no one identified any specific service for which student would be eligible.

Although the hearing officer found the IEP to be deficient, she also found that the parents had not proven the need for a residential placement. Neither of parents’ two well-known medical experts had educational expertise or direct knowledge of the student’s educational needs and programming. Student’s developmental pediatrician, who had known the student for ten years, reviewed school records and attended a team meeting, but did not review the student’s most recent IEP, did not observe him in his current classroom or at home, and did not speak with teachers, staff, or home providers. She also found the parents’ other expert recommendations of limited use because that expert did not testify and was not subject to cross examination. Finally, the parents also presented no evidence as to why their preferred placement, the Higashi School, would be appropriate.

In the end, the hearing officer was left having determined the school’s proposed IEP to be insufficient and unable to be modified, yet with insufficient evidence from the parents to support their request for placement. Having determined the evaluative information to be inconclusive, she ordered an extended evaluation in a residential setting to determine what type of placement student requires to receive FAPE.

This decision highlights, once again, what it means for parents who initiate a due process hearing to carry the burden of proof. Their witnesses, singly or in combination, must have first-hand information about: (1) the student; (2) about the school district’s proposed services and placement; and (3) about any alternative program that the parent may be seeking. The parents’ key witness(es) must have the relevant licensing, expertise and experience to render a persuasive opinion about what the student needs in order to access his education and make effective progress, and about which of those critical elements are missing from the school’s proposed program and about the presence of those very elements in the parents’ proposed alternative program. Parents, to carry their burden of proof, must convince the hearing officer that the school’s IEP cannot, even with modification, enable the student to make effective progress—a task that cannot be accomplished in most cases by far without expert testimony regarding those issues.

We feel that this hearing officer, noting the safety risks involved in the matter, did the right thing by ordering an extended evaluation at a residential facility after she found a lack of sufficient evidence on which to order a residential placement. This was a proactive order, obviously made in the interests of the student and laudable in its pragmatism and its humanity.

 Banishment of Behaviorally-involved Student to Separate Facility = LRE?

In a twist from the usual posture of BSEA placement cases, the parents in Springfield Public Schools and Ted, BSEA #1309716, 20 MSER 62, were seeking a less restrictive educational setting for their 15-year old son, who had a history of emotional and behavioral problems stemming back to the fourth grade. In elementary school, the student was hospitalized on numerous occasions for disruptive, assaultive, destructive, and defiant behavior. In middle school, the student’s problems continued, resulting in suspensions, arrests, and assaults, leading to court involvement.

Hearing Officer Ray Oliver denied the parents’ request for placement in a less restrictive setting, finding that the student had made academic, social and emotional progress in the more restrictive, highly structured therapeutic program and impliedly determining that he could not have done so and would not continue to do so except in the separate program to which he had been assigned.

Following mediation with the district in 2012, the student was moved to Springfield’s Learning Center (LC), a public day school program, located in a building separate from all regular education programs. The LC is meant to serve students with severe emotional and behavioral disabilities, providing comprehensive behavior management strategies. All students who attend the LC program are special education students. The LC program is the most restrictive placement within the Springfield Public Schools and is “designed to offer intensive, therapeutic behavioral supports with flexible staffing that students get in a private, out-of-district placement, but provided in a public school program.” The student remained in the LC program for seventh grade. In eighth grade, his parents rejected the placement and requested a hearing to seek his return to a less restrictive, more mainstream setting.

After filing the initial hearing request, the parents had filed an amended hearing request seeking a class action on behalf of the student and “all similarly situated students in district”, which was later dismissed. Following the class action dismissal, the district proposed an IEP for continued placement at the Learning Center. Unfortunately, the decision does not provide specifics regarding the quest of the class action and what the class was seeking in common. We can reasonably surmise that they hoped to challenge Springfield’s model serving students with behavioral needs in a completely separate building and to seek system-wide changes opting for more inclusive solutions, but without more explanation in the decision we cannot know for certain. Similar to another ruling issued during this quarter, parents had also raised an Americans with Disabilities Act (ADA) claim concerning the LC program, which was dismissed for lack of jurisdiction. See Springfield Public Schools, BSEA #1404388 (Crane, 2/26/14). In that case, also discussed in this quarter’s commentary, the student’s attorneys argued that Springfield’s more restrictive LC program violates the ADA’s mandate for integration.

Before the first day of hearing, the parties reached an interim agreement for the student to attend a 45-day extended evaluation at the Social Emotional Behavioral Supports (SEBS) program, a less restrictive program for students with significant emotional and behavioral difficulties located at Springfield’s Chestnut Accelerated Middle School. SEBS is described in the decision as a small, substantially separate, structured therapeutic environment providing comprehensive behavior management strategies, social/emotional skill instruction, individualized counseling and support where students transition between the SEBS classrooms and the general student programs and classes at Chestnut. When the parties could not reach agreement regarding the student’s prospective placement at the end of the extended evaluation period, the student was returned to the LC program because that was the stay-put placement.

In denying the parents’ request for a less restrictive setting, the hearing officer relied on the testimony of teachers from both the LC and SEBS programs who had worked directly and extensively with the student. He found the teachers’ testimony credible to the effect that the student was making good academic progress and some emotional progress at the LC program but had experienced too many unmanageable behavioral incidents while in the less restrictive SEBS setting. He also noted that the student had experienced no further arrests or court involvement while in the LC program and had come off of probation, crediting the structure, controls and containment of the program in preventing student’s behaviors from escalating and resulting in further legal difficulties.

The hearing officer gave little weight to the parents’ primary expert witness, whose testimony comprised, he said, “in essence, parents’ entire case with respect to justification for the less restrictive SEBS placement.” The expert was a licensed clinical psychologist who reviewed documents, interviewed the mother and student’s therapist, observed the student in the LC program over three days and observed a math class at the SEBS program before the student was in attendance. The hearing officer pointed out that parents’ expert held no educational licensures or certifications, performed no evaluations of the student, and had no therapeutic relationship with him. He further noted that her conclusions about the LC program being too restrictive were based entirely on her review of the work of others who evaluated and worked directly with the student and that she questioned the diagnosis of others while not offering a diagnosis of her own. He found her review of the data and findings for a less restrictive placement failed to take into account reports of behavioral/disciplinary incidents where student physically assaulted staff and students, used obscenities and left school grounds. Parents also did not call as a witness the student’s independent psychotherapist who had had a continuing relationship with the student for over three years, and who the hearing officer felt may have been able to offer valuable information.

In the end, the hearing officer found that the parents failed to carry their burden to prove that the IEP for the LC program was inappropriate. Based on the behavioral difficulties still exhibited by the student, the hearing officer found placement in a less restrictive environment not to be warranted or appropriate. This finding was reinforced by student’s behaviors while in the SEBS program, including jumping out of a moving bus, getting into a physical altercation with another student, verbal aggression toward other students, bolting from school, profanity directed at teachers, use of sexualized language, and antagonizing and targeting more vulnerable students. The hearing officer concluded that such behaviors demonstrate that student had not internalized or generalized behavioral controls and credited the district with attempting to make the SEBS extended evaluation work for the student, by using the parents’ expert’s suggestions and strategies, even though many had been used without success.

What the decision does not tell us is how accommodations were exhausted to justify this intensive, separate placement. IDEA’s “least restrictive” mandate is referenced at 603 CMR 28.02(12), which describes the LRE as: “the educational placement that assures that to the maximum extent appropriate, students with disabilities, including students in public or private institutions or other care facilities, are educated with students who are not disabled, and that special classes, separate schooling, or other removal of students with disabilities from the general education environment occurs only when the nature or severity of the student’s disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.” The burden of proving compliance with the state and federal LRE requirement is borne by the school, regardless of which party brings the claim. See Oberti v. Bd. of Educ. of Borough of Clementon School Dist., 995 F.2d 1204 (3rd Cir. 1993).

This case involves an especially restrictive placement—a completely separate building and services based on a student’s difficult behaviors. While, given the nature of the behaviors itemized in the decision, perhaps the outcome is warranted, it would be useful, we think, in a decision of this kind to at least cite explicitly the legal requirement to exhaust less-restrictive alternatives and to describe exactly the accommodations and modifications that the district exhausted before concluding there was no alternative than to exclude the student from a mainstream building.

Charged with the burden of proof, parents should only choose their independent experts as carefully as possible, making sure that they have access to all relevant evidence to support their opinions, and that their opinions are based primarily on their own direct observations, testing and analysis rather than on the conclusions of others, so that they will be found credible and persuasive in their findings and recommendations. The credibility of those experts will ultimately turn not just on credentials (training, certifications, special experience, history as an evaluator including whether the expert has consulted to districts as well as parents), but also on the data upon which the expert bases his opinion. Here, as in other cases on which we comment this quarter, the key witness for the parents was found wanting for her lack of direct and extensive experience with the student himself, especially in light of the parents not having called the student’s long-time outside therapist to testify.

As for the nub of this ruling and the companion ruling reported in this commentary, it is clear that efforts are being made by concerned advocates to challenge Springfield’s default exclusionary placement for students who misbehave. With Chapter 222 (Massachusetts’ new law requiring creative approaches to disciplinary incidents to be exhausted before punitive exclusionary tools are employed) about to become effective on July 1, and with the tide that is building against the use of exclusion as a tool for dealing with disciplinary issues (see, e.g., OCR’s “Dear Colleagues” eloquent statement regarding the disproportionate impact of suspension and expulsion as a disciplinary tool on ethnic minorities—with a note concerning a similarly troubling disproportionate impact on students with disabilities—at http:// www.justice.gov/crt/about/edu/documents/dcl.pdf), we hope to see a surge of alternative solutions arising in our schools to work with students who break the rules. As progenitors of one creative approach to behavioral issues called “Collaborative Problem Solving” (see http://www.thinkkids.org) have determined through their research and implementation of CPS, children do not choose to be “bad” typically, and a system that responds only punitively fails tragically to address their actual needs or build their potential.

Same Separate Facility: No BSEA Jurisdiction over ADA Claims

In a matter involving the same separate behavioral facility as Ted, noted above, a different hearing officer in Springfield Public Schools, BSEA #1404388, 20 MSER 37 (February 26, 2014, Crane) ruled that the BSEA has no jurisdiction over a claim raised under the Americans with Disabilities Act (the “ADA”) nor, alternatively, does it have an obligation under the principles of Frazier v. Fairhaven School Committee, 276 F.3d 52 (1st Cir. 2002), to conduct an evidentiary hearing on the underlying allegations before parties can pursue their ADA claim in federal court.

The BSEA has long-since acknowledged its jurisdiction over claims asserted under Section 504 of the Rehabilitation Act of 1973 (“Section 504″), the older sibling of the ADA. Section 504’s antidiscrimination provisions apply to entities that receive federal funds directly or indirectly; they apply to public schools; and they include an obligation to provide a student with a Free Appropriate Public Education. While that FAPE requirement overlaps with the FAPE requirement under IDEA, it is not identical and, as this ruling indicates, ”implementing an IEP that provides a FAPE under the IDEA is sufficient, but not necessary, to satisfy the FAPE requirements of Section 504.”

The ADA’s anti-discrimination requirements, which parallel those of Section 504, extend to both private and public entities regardless of federal funding. Unlike Section 504, however, the ADA does not include a FAPE requirement and, as the hearing officer acknowledges, cannot be dismissed solely on the basis of a finding that the district’s IEP provides FAPE. More to the point, allegations in this case apparently included several claims under the ADA that “have no counterpart under Section 504 regulations.” The ruling cites only one example of such strictly ADA-based claims, however, an argument that “the ADA requires Springfield to engage in an interactive process with Student’s mother in an attempt to reach an agreement on an accommodation or modification to Springfield’s policies, practices, programs and activities, and  that Springfield failed to do so.” Unfortunately, this example tells us next to nothing about the scope of the ADA claims or what the student’s attorneys aimed to achieve by pressing those claims. We can speculate that they hoped to expand the ability of parents and students to seek more system-wide remedies than can ordinarily be achieved through an action under the IDEA or Section 504 (the example given possibly suggests they sought a change in general policies and practices rather than only for this student), but without more explanation in the ruling we will never know.

The hearing officer stated first that the BSEA’s jurisdiction is limited to those powers that are expressly granted by statute or regulation and/or to claims that are “inextricably intertwined with a student’s special education rights,” and concluded that neither of those bases supports the BSEA hearing a claim under the ADA. The student’s attorneys in this matter argued that the ADA’s distinct mandate for integration of those with disabilities is violated by the district’s unduly restrictive current placement for the student. By that token the BSEA would have jurisdiction under the direct language of IDEA conferring jurisdiction over a complaint “with respect to any matter relating to  educational placement of the child.” The hearing officer countered that this argument went too far and that, if it were upheld, the BSEA would have to consider “literally any claim (even those completely unrelated to Student’s special education rights) that may be relevant to Student’s educational placement—for example, a claim of gender discrimination or a claim of a building code violation.”

We respectfully disagree. The hearing officer’s concern about the potential for the BSEA having to consider “any matter relating to  educational placement” if the student’s argument is sustained goes “too far” itself. The BSEA could, we believe, avoid that slippery slope simply by applying a condition tied to the IDEA’s jurisdictional language—that any claim relating to educational placement be, in fact, related to the student’s special educational rights.

The hearing officer also rejected the notion that the federal court might require the BSEA to be the first-round fact-finder for an ADA claim, even if it does not itself have authority to rule on ADA claims itself. This, the student’s attorneys argued, flows from the federal court’s interest, as reflected in Frazier, in having the BSEA develop a factual record and suggest findings where the subject matter falls within its expertise, in the interest, among other reasons, of efficiency and judicial economy. The hearing officer countered that there is no judicial authority supporting the proposition that a due process agency’s “expertise, by itself, is sufficient to require exhaustion of BSEA fact-finding proceedings.” He also demurred about the BSEA’s supposed “expertise” that could arguably assist the federal court in the spirit of Frazier, saying that while some ADA claims would likely overlap with issues that are central to claims under Section 504 or IDEA, others would not and the BSEA’s findings would, for those, be of little value to the federal court.

The arguments and conclusions reflected in this ruling have all the hallmarks of a close case. Depending on the outcome of the case in chief—a typical proceeding involving the appropriateness of Springfield’s IEP under IDEA and Section 504—it would not be surprising to see an appeal that brings to federal court the issue of the BSEA’s jurisdiction over an ADA claim and/or the possible requirement that the BSEA try facts relevant to an ADA claim at the BSEA before the case can proceed to federal court. The ultimate outcome of the questions regarding the BSEA’s jurisdiction or involvement in ADA issues is far from certain. Neither is it certain of how much practical consequence the result here or later really is or will be. The extent to which the ADA’s protections for public school students may reach beyond those contained in the IDEA and Section 504 for public education students is, as far as we can ascertain, largely untested and probably quite limited and of little practical effect. That said, we will watch with great interest any further developments in this line of argument and will celebrate with all parents and their advocates if our pessimism proves to be ill-founded.

Round Three in Andover Dispute; Still no Peace

Andover Public Schools, BSEA #1402762, 20 MSER 16 (January 22, 2014, Berman) is another case where the parents are opposing the district’s move to place the student out of district at a private school. This is round three in litigation between Andover and the parents of a now-sixteen year old tenth grade boy with Asperger’s Syndrome (we’ll continue to use this category, notwithstanding DSM-5, as it continues to be used in the decision at hand, and as it continues to have meaning to experts in the field and those who live with its characteristics). The parents have proceeded without an attorney throughout the history of this dispute.

The first round, which the hearing officer refers to as “Decision No. 1,” introduced the issues that have dominated the case since at least the middle of 2012: whether the student’s behavioral/emotional needs could not be appropriately met within the public schools of Andover and, if not, whether placement at a particular state-approved private special education school—The Gifford School—would provide a FAPE. There has never been a dispute in this case over this student’s eligibility for an IEP or whether he was making academic progress. The issue was whether he was making effective progress in the development of social and emotional/behavioral skills.

Decision No. 1 resulted in findings agreeing with Andover that the student’s behavioral needs could not be met in Andover’s high school, but also finding that Andover had not proven that Gifford would be appropriate either. That decision ended with an order that Andover “locate or create a placement designed for highly intelligent students with Asperger’s Syndrome and similar disorders.” Parents had argued that the student could safely access and progress in Andover if he were provided with certain supports recommended by an independent behavioral psychologist, but the hearing officer found that that expert did not know Andover’s school resources well enough to opine and accepted the testimony of Andover’s witnesses to the effect that the size and complexity of the high school, the number of interactions the student would have to navigate during the day, the difficulty of maintaining consistent responses to the student, and the emphasis on group work in the program all dictated against his placement there. The level of “in the moment intervention” that even the parents’ expert indicated would be needed could not be provided within the high school, she found, especially in light of the student’s consistent resistance against such interventions and lack of effective social/behavioral progress over several years.

In our comment on that decision (18 MSER 18) we noted that “[t]he law’s requirement for maximum appropriate inclusion strains against the requirement for effective progress” in the outcome. It did not appear from the reported record that the district had rigorously exhausted the options for in-school supports and accommodations before it filed a request for hearing to bless its offer of an outside placement. “What may have tipped the balance,” we suggested, was “the underlying theme of violence and disengagement expressed by the student in drawings and in an essay that caused concern among the school staff.” We thought that “his attitude seems to have frightened the school into a campaign to send him elsewhere …” and that in “the continuing shadow of the 2007 killing of a fellow student in Lincoln-Sudbury by a student with Asperger’s Disorder, it seems that concerns for security will be tacitly weighed in the balance against the least restrictive environment mandate.” Here, after round three, we still think so.

Following the issuance of Decision No. 1, the district requested the parents’ consent to send referral packets to 12 special education placements. The parents refused permission for all but one of those options; that one declined to accept the student. Parents argued both then and repeatedly again throughout the process that there was no point in sending packets to any schools that they had themselves already investigated and found wanting or, in some cases, that had already previously indicated that they could not meet the student’s needs. The parents also refused to participate in a Team meeting when the date of expiration of the last proposed IEP was approaching.

The parents enrolled the student in the meantime at an unapproved private sectarian school, beginning in September 2012, even before the BSEA issued Decision No. 1. The student continues to attend that sectarian school and the parents’ efforts since that time have been devoted primarily to seeking funding from Andover for their unilateral placement at that school. Reports from that school apparently reflect a successful experience, including, on the parents’ report, socially and behaviorally. On the strength of that experience, the parents are now claiming that the student could return to Andover without any IEP at all.

Both parties appealed the BSEA’s findings to federal court. Andover appealed the BSEA finding that the district had failed to show that Gifford could meet the student’s needs. . The parents cross-appealed, arguing that the BSEA’s finding that the student could not be educated and receive a FAPE at Andover High School with appropriate supports was wrong. The decision of the district court denied both appeals and upheld the BSEA on both points. Citing the First Circuit’s description of the standard of review on appeal under IDEA as “involved oversight,” the court effectively deferred to the hearing officer’s first-hand opportunity to weigh the credibility of witnesses and find facts. The court also noted an argument that the parents apparently introduced during the appeal with additional evidence from the student’s record at the sectarian school he was attending. They urged, “contrary to their official position at the BSEA hearing,” that the student “does not need IEP [sic] or ‘therapeutic environment’ at all.” The court responded that while the new evidence “is suggestive of new avenues to explore in the ongoing search for a fair and appropriate public education for the student, it is not relevant to the BSEA decision” on appeal.

In this most recent MSER decision, the parents are reported as having testified that the student “does not need special education services or a therapeutic environment.” Accordingly, while they sought an order for reimbursement of the cost of the placement they made, arguing that the district had failed to comply with the order in Decision No. 1, they also now had concluded that he could progress without an IEP at all.

The hearing officer found that the parents had made compliance with her earlier order impossible by refusing to consent to the sending of referral packets to 12 schools listed by the district. Their argument that they’d already vetted all those schools through the internet, drives around campuses, telephone calls, and examination of resources such as the MAAPS directory, held no water. Without the parents allowing the process of application and review to proceed, the hearing officer noted she could not speculate about how those schools would have responded and could not find that any of those schools would have been inappropriate. She observed, too, that the parents’ refusal to permit Andover to contact and obtain information from the student’s current private school placement further impeded the process, though she acknowledged the parents’ reason for not opening the door: they had not informed that school about the student’s prior special education status and they were concerned about the potential impact of the private school learning of that status and the student’s previous behavioral history.

All in all, this has been a convoluted and disputatious history with both parties strenuously and relentlessly asserting their positions and their arguments for some years and at considerable expense in time, money, and stress. Obvious lessons to each side lie in the text: For the district, in the initial proceeding, while it did not persuade the hearing officer that Gifford could offer a FAPE, there and again at the district court they seem to have counted too much on the bare outlines of the program to carry their argument where, as the district court noted, the school’s mere status as an approved therapeutic special education program was not enough to demonstrate that it could meet the particular needs of this student. As for the parents, unrepresented throughout, they seem to have proceeded with an unrealistic perception of their rights in the process, and little understanding of the law’s insistence on parent cooperation with the district, no matter the level of antagonism that may arise, and of the presumptive deference that is generally accorded to districts—a deference that one cannot realistically hope to set aside without clear, well-founded support by credible experts. In this event, the parents had the opinion in hand of a well-regarded behavioral expert, but his opinion that the student could be accommodated successfully in the regular high school could not stand in the absence of any personal familiarity with the actual high school setting. He did not observe and he apparently did not discuss the student or the high school’s resources with Andover personnel.

The federal court’s decision concluded with an interesting comment, within which one can almost hear the sigh of exasperation of a seasoned district court judge. Having denied both parties’ arguments on appeal he went on to say:

“I am compelled to observe, however, that all parties may wish to leaven their seemingly intractable and rigid formal positions with a bit of common sense and practicality as they go forward. To be sure, Andover has demonstrated for now it cannot provide FAPE for the student at Andover High School; yet it has been willing to fund a very expensive alternative at The Gifford School, which for now has not been demonstrated to provide the Student with FAPE either. For their part, the Parents and the Student seem to be intent on demonstrating, as much for perceived dignitary reasons as for educational ones, that the Student should not be excluded from Andover High School. Meanwhile, the Student appears from the limited information provided to be flourishing in his current parochial school.”

Putting to one side for the moment the opinions of professional educators and behaviorists about appropriate protocols to address the issues confronted by the Student and noting George Bernard Shaw’s mordant observation that ‘all professions are conspiracies against the laity,’ it might be appropriate for all parties to return to core principles and explore whether the Student’s current, less expensive, placement may be providing—the trend of professional thinking in this area to the contrary notwithstanding—a fair and appropriate education for the Student which consequently can properly be publicly funded. If the parties were to agree to a more cost effective means to provide FAPE, the goals of the parties might be secured without further proceedings.I suggest the parties consider whether further battle over the purity of their principles should be undertaken at the expense of an available alternative that meets the needs of the Student.

Wise guidance, apparently offered to no avail, since the parties then wound up back at the BSEA, yielding the present decision. Nonetheless, we cite the judge’s words here as worthy of attention for all parties and practitioners in these disputes.

We note that if the parents are serious about their recent assertion that the student no longer needs an IEP, they can return the student to Andover High School as a regular education student, since IDEA provides that parents are entitled to remove a student from special education, without a district having recourse in due process to contest that decision. (See 20 U.S.C. §1414(a)(1) (D)(ii)(II); 34 C.F.R. 300.300(b)(1),(3)). Such removal, however, comes at the risk that the student will be subject to disciplinary process without the protection of IDEA if he violates the school’s disciplinary requirements. Opting back into special education would entail starting fresh with new evaluations and the many steps and standards of the process that have left the parties at the current stalemate. Removal from the auspices of IDEA, however, does not necessarily mean removal from the possibility of a 504 Plan incorporating accommodations to enable the student to access his program despite his disability. Whether, given their history and the ardent positions so extensively and intractably asserted against each other, the parties could successfully navigate the process now, in the wake of a successful time in a separate non-special education school, would likely require a major attitude adjustment for each. We’d like to think that even the most adversarial of parties can restore a broken relationship. If it could happen for victims and oppressors in South Africa through a process of restorative justice, surely parents and their school districts can find the wisdom and intelligence to work out their differences.

Claim that District Failed to “Locate or Create” Program Rejected

In Re: Quincy Public Schools, BSEA #1403404, 20 MSER 42 (March 6, 2014, Crane), was the third in a series of opinions by the hearing officer attempting to resolve a long-standing and contentious placement dispute between the parents and school district regarding a student with learning disabilities and serious hearing loss. For a full discussion of the earlier decisions, please see fourth quarter commentary 2012 with a detailed description of the factual background, the stay-put ruling (18 MSER 339), related procedural issues discussed in the hearing decision, and the decision on the placement dispute (18 MSER 352).

In the instant matter, the following issues were in dispute: 1) whether the 2013-2014 IEP offered FAPE; 2) whether the district complied with the November 2012 decision, and if not, what relief (including compensatory educational services) could be awarded; 3) what, if any, living expenses, travel expenses, and tutoring expenses incurred by the parent from the beginning of 2012-2013 school year (the stay-put period) to the present should be reimbursed by the district; and 4) whether the district acted with “deliberate indifference, gross misjudgment, and animus towards student in violation of the IDEA, Section 504, and MGL c. 71B and their regulations.”

The parents alleged the district had not complied with the hearing officer’s November 2012 decision that ordered the district to “locate or create” a program providing small language-based classes where her hearing and learning disabilities could be addressed in an integrated manner. The hearing officer had emphasized the importance of providing such a placement as soon as possible and cautioned the parents that any lack of cooperation on their part during the process could affect any future claim for reimbursement of their living expense during the stay-put period. In the event that the parents delayed or hindered the process (thus prolonging the stay-put period), the hearing officer warned that their claim for reimbursement for future living expenses (from the date of the decision until the identification of an appropriate program) could be reduced or denied.

Turning to the merits of this case, the hearing officer did not make any findings or rulings on the prospective claims or the compensatory claims. He noted that the prospective claims concerning the 2013-2014 IEP had been addressed informally between the parties. Beginning in the 2013-2014 school year, the student began attending a special education program in a nearby school district, based on a tuition-in agreement between that district and Quincy. The parties agreed to an IEP under which the student would attend the neighboring district’s program even though it did not fully comply with the 2012 decision.

In regard to the parents’ compensatory claims, the hearing officer found that they had waived those claims by not addressing them in their closing argument. In their hearing request, parents had sought two years of compensatory services “due to lack of appropriate summer services, lack of a current appropriate IEP, and failure to provide a special education teacher in [student’s] current placement.” In his ruling, the hearing officer cited the First Circuit waiver rule for failure to argue a claim as the basis for his decision: “issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.” Accordingly, “[A] litigant has an obligation to spell out its arguments squarely and distinctly, or else forever hold its peace.”

Practitioners should take note of this consequence and take care not to give up claims inadvertently by failing to argue in their support at the appropriate juncture, thinking, perhaps, that the claims speak for themselves.

This left the hearing officer with the remaining issue of reimbursement to consider, based on the previous decision that the Clarke School was the stay-put placement the student had a right to attend until an appropriate program was located or created. Though no appropriate educational program was ever created or found that would fulfill the criteria outlined in his earlier decision, the hearing officer found that the student’s parents had frustrated the district’s efforts to locate such a program. He credited the district, hampered as it was by the parents’ lack of participation, for having taken all reasonable steps to find an appropriate language-based program, with added resources to accommodate student’s hearing deficits.

Concerning the parents’ lack of cooperation, the hearing officer cited In Re: Andover Public Schools, BSEA # 1402762, 20 MSER 16, supra, for the proposition that locating a private school requires both the initiative of the school district and the cooperation and participation by the parents. In the instant case, parents rejected a priori all language-based school programs proposed by the district, deeming them unacceptable due to their lack of experience working with students with a hearing disability. Because the parents blocked the admissions application process, the hearing officer found it impossible to determine with any degree of certainty an approximate date when the student would have been able to attend a school other than Clarke. Accordingly, he established a range of time from the earliest possible date the student might have enrolled at an educational program to the latest possible date she might have commenced a program if the parents had cooperated. Within this timeframe, he calculated the reimbursement for living expenses (hotel and food costs) and transportation between home and Northampton and awarded the parents $5,997.88. This seems a solid and pragmatic solution that reasonably balances the equities between the parties.

As a final matter, the hearing officer found that the district had not acted, as the parents had alleged, with deliberate indifference, gross misjudgment, or animus towards the student. He found, to the contrary, that the district had acted, not only reasonably, but with “magnanimity,” and the parents had no claim for damages.

This decision highlights issues regarding stay-put, the need not only to raise but to follow through with all issues one wishes to pursue at hearing, the wisdom of refraining from overstating one’s characterization of a district’s behavior (i.e., alleging “deliberate indifference, etc. in the context of the parents’ own refusal to participate in the admissions review process), and most importantly, the self-defeating effect that parents’ contentious and uncooperative behavior can have on the outcome of a case.

Early Child Find Action Might Have Averted Student Melt-down

In Re: Milford Public Schools, BSEA #1405530, 20 MSER 23 (March 2014, Figueroa), reports the BSEA’s dismissal without prejudice (meaning that the matter may be re-filed at a later time) of the parents’ request for hearing. Parents had sought an order that Milford determine the student to be eligible for special education and related services and provide an IEP to address his needs. The hearing officer found that because the parents moved the student first to an out-of-state wilderness program and then to a sequence of out of state residential programs they had “constructively rejected” Milford’s offer to conduct an evaluation in connection with a proposed 45-day extended assessment at a local collaborative program. “Nothing in the IDEA or the Massachusetts Special Education Regulations,” said the hearing officer, “requires that a school district perform an initial evaluation out of state.”

The key events are these: The student, then age 15, who was enrolled without either an IEP or a 504 plan, was hospitalized in April 2012 because of suicidal ideation and the ingestion of a large amount of alcohol. He was discharged early in May 2012 with recommendations that included individual and family therapy, psychopharmacological medication, activities to enhance his sense of self-worth, return to school with support from the school’s counseling staff, and, at any point he acted or felt unsafe, an assessment for emergency treatment.

It was not until December, following the student’s breach of the school’s disciplinary rules through the possession and use of drugs in school, that the district—with what it apparently characterized as an “abundance of caution”—conducted a manifestation determination. The school claimed in this proceeding that it was not possible to make the determination because the student did not have an IEP or a 504 plan and there was no “diagnosis from an outside provider of a social/emotional disability.” We note that the BSEA’s decision describes a diagnosis that was rendered by the inpatient team for the student’s hospitalization in April of “Mood Disorder NOS,” co-morbid with diagnoses of alcohol and substance abuse. We question why that was ignored in the consideration of the student’s behavior in the school’s manifestation determination.

Despite its failure to determine that the student’s misbehavior was a manifestation of his disability, the district proposed that the student participate in a program with certain accommodations within his classroom and also undergo a full set of evaluations, including a risk assessment. Though the parents consented to that proposal, they were also investigating more immediate interventions and soon moved their child to an out-of-state wilderness program both to interrupt the cycle of unsafe behavior in his home and community and to provide him with a consistent program of supports, therapy and assessment. This is an emergency action that many parents, if they are fortunate enough to have the means, will take. They do so in order, literally in many cases, to save their child’s life and to give him or her a fighting chance to stabilize and obtain the necessary self-understanding and management skills ultimately to make his or her way back toward a healthy and productive life in his or her home and community.

Typically, while in such a therapeutic wilderness program, and also while in therapeutic programs to which such students often later move in order to consolidate and further develop the skills they need, it is not possible to return home safely until behaviors and vulnerabilities have stabilized. That is what happened in this case and that is why, as the decision reports, the parents notified the district that the student could not be made available for evaluation in the district on the district’s schedule. They proposed that the district either convene the team on the basis of previous evaluations that had been generated by professionals working with the student in the various therapeutic programs he participated in outside of Massachusetts or send any evaluators they chose (presumably including engaging local evaluators where the student was situated at the time) to the student to complete the process. The hearing officer characterized this as a “constructive rejection” of the district’s request to evaluate. She even discounted the parents’ offer to make the student available for evaluation when he was at home during school breaks, once he had reached a reasonable degree of stability; she stated that a district could not be obligated to complete an evaluation during a school vacation week.

Parents and advocates need to take this outcome as a warning. As agonizing as parents’ choices may be in their efforts to address the urgent and often life-threatening needs of their children, and as limited and expensive as the options inside or outside of the state may be to provide the intensive help necessary to move a child into a more stable condition, the steps of the process by which they will need to seek the support of their school district will not always bend in proportion to the urgency of the need. By the reasoning of this decision, school districts are deemed free not to extend themselves beyond the letter of the required schedule. If a child cannot safely be brought back home to comply with the demands of the district, the process will be delayed until he can return. Of course, some districts do adopt a more compassionate approach, even to the extent of having an expert travel to evaluate the child. By putting the child’s interests before their institutional prerogatives, those districts gain both a more trusting relationship with parents and a more informed view of the student.

What is starkly missing from the analysis in this decision is a look at the obligation of the district long before the student’s behavior so radically crossed the disciplinary line that they could no longer ignore his particular vulnerabilities. The undisputable obligation of every district—its “child find” obligation—is to identify, evaluate and serve the needs of any child under its jurisdiction suspected of having a disability that undermines his or her access to and ability to progress meaningfully in his or her educational program, including social/emotional development. Here the district was very much on notice, at the point of the student’s entry into a psychiatric hospital and at the point of his discharge, of the behavioral and emotional turmoil the student was experiencing. It is at that juncture that we believe the district was obligated to request consent to evaluate and explore the existence, magnitude and effects on academic progress and social/emotional development of a disability. The child find obligation is not the obligation of the parent but of the school district and the district is not excused if the parent did not think or know enough to request an evaluation and services. In this case had the district done an evaluation a reasonable time following the hospitalization, at least at the start of school in the ensuing fall, one presumes that the evaluation could easily have been completed and the Team convened to consider and act on findings and recommendations before the student fell off the tracks in December 2012. Without that evaluation and the interventions that the district could have put in place at that time, the student experienced a steeply declining sense of self-worth, increasing depression, and resort to self-medication as the months passed, to the point in December when he dramatically lost his ability to control his behavior in school. It was then too late for a preventative round of evaluations and service delivery, and since that time the district has played catch-up while the parents have taken all the steps they can to save their son.

An assessment of this chronology should have led to a finding that the district violated its child find responsibilities long before the student’s disciplinary crisis in December and to a remedy aimed at compensating for the period during which services should have been in place and enhancing the student’s progress toward a reliably healthy and productive life.

When a Missing Parent Turns Up, Her Town Becomes the Responsible LEA

In Randolph Public Schools v. Mass. DESE and Boston Public Schools, BSEA #1402607, 20 MSEA 39 (March 6, 2014, Oliver) the student’s mother had disappeared for some years, during which time the student’s grandmother, a Boston resident, obtained legal guardianship on the presumption that the mother had died (the father was apparently found unfit to have custody). The student attended Boston’s therapeutic program at the McKinley School for some time, but moved to Randolph after her mother reappeared. Randolph, not having a placement comparable to the McKinley program, provided an IEP placing the student at a local approved private therapeutic school. Randolph then asked the DESE to assign responsibility to Boston for funding of that placement because the student’s legal guardian resided in Boston. DESE denied that request.

The hearing officer upheld DESE’s determination, finding no merit in Randolph’s argument that the Probate Court’s grant of guardianship to the grandmother required Boston to assume responsibility. The Probate Court did not determine the mother to be unfit or terminate her rights as a parent, and to apply the regulations that assign responsibility where the student and a parent live in separate locations to this case would turn the applicable regulations on their head. The regulation that Randolph cited, 603 CMR 28.10(4), the hearing officer noted, was intended to provide for situations where a student lived with a relative in a different town from his or her parent, and it would contort that provision to apply it as Randolph wished. “Mother is Student’s mother, not some other relative simply because Student has a legal guardian who was appointed at a time when mother was presumed dead.”

The hearing officer also rejected Randolph’s argument that the Move-In Law (MGL 71B, §5) should make Boston responsible, since that statute is meant to apply when a student is already in a private day or residential program at the time parents move from one district to another.

Agreement to Check Out a Program is Not Agreement to Placement

The district in Wayland School District, BSEA # 1403324, 20 MSER 23 (February 6, 2014, Crane), citing an agreement reached in mediation, tried unsuccessfully to impose an obligation on the parents that was clearly not part of that agreement.

The student, a ninth grader, was alleged to suffer from ADHD, impaired processing speed and anxiety, and she had been ostracized and bullied. In mediation the parties had reached an agreement that Wayland would send a referral packet to the TEC School in Newton and that, if the student was accepted, Wayland would agree to fund the placement for three years. Wayland fulfilled its part of the agreement. For their part, the parents agreed to visit the TEC program with the student, and did so. They did not find the placement appropriate for the student, however, and, despite TEC’s decision to accept the student, the parents enrolled her unilaterally at a private school and sought funding from Wayland for that placement.

Wayland moved to dismiss the parents’ claim for funding and cited the mediation agreement regarding TEC. The hearing officer reached the only supportable result he could in denying Wayland’s motion to dismiss the parents’ hearing request. Even with a cursory reading of the terms of the mediation agreement, its terms clearly did not include any obligation on the parents’ part to accept placement at the TEC School even if the student was accepted. The parents had agreed only to cooperate in the referral process. The motion might have been disposed of with a simple interpretation of the plain meaning of the contract’s text, including the obvious lack of any requirement that the parents accept the TEC placement if it came to be available.

Giving the district’s argument more credence than it perhaps deserved, however, the hearing officer took the trouble to lay out the protocol for adjudication of an argument based on an alleged waiver by parents of their rights under IDEA—i.e., of their and their child’s civil rights. The hearing officer’s description of the heightened standard of interpretation that applies is worth citing:

When interpreting an agreement that allegedly waives parental rights under the IDEA, the “more searching standards reserved for waivers of civil rights claims, rather than general contract principles”, apply [citing W.B. v. Matula, 67 F.3d 484, 498 (3rd Cir. 1995)]. Additional factors must be considered, such as whether the language of the agreement allegedly waiving IDEA rights was “clear and specific.” Also, a waiver of a parent’s rights under the IDEA or state special education law must be knowing. From these standards, I find that for the mediation agreement to have effectively waived Parents’ rights in the instant dispute, the language in the agreement must, at a minimum, have been sufficiently clear and specific so that Parents would have known what they were giving up by entering into the agreement.

The care with which this hearing officer approached the district’s motion is exemplary—the ruling both amply and conservatively reaches the correct and inescapable result and educates the reader about contract principles under a civil rights lens in the process.

Compliance: A Misunderstanding About a BSEA Decision Ordering the IEP Team to Re-convene Ends with an Agreement for a Facilitated Team Meeting

In Pembroke Public Schools, BSEA #1310012c, 20 MSER 60 (March 26, 2014, Crane), the parent had earlier succeeded in obtaining an order from the BSEA requiring the district to evaluate the student through a Lindamood Phoneme Sequencing (LiPS) program and to provide intensive tutorial instruction in the amount recommended by the evaluation (19 MSER 299). The hearing officer held that if the evaluation did not recommend LiPS instruction, the IEP Team must re-convene with parent and parent’s expert to determine what other additional, specific instruction was needed to address student’s phonological challenges.

At the time of the compliance proceeding, while the district had implemented parts of the decision, a dispute had arisen over the scheduling of the IEP Team meeting. The parent alleged lack of compliance because the district had “abruptly cancelled” the team meeting that would include parent’s expert and instead arranged for a mediation. The district countered that it had cancelled the Team meeting because the parent had “verbally threatened to harm” the district’s special education coordinator if he were to attend the meeting and instead sought to re-schedule the meeting where the special education coordinator could attend with a BSEA mediator present to oversee the meeting.

The hearing officer determined that there had been a misunderstanding between the parent and the district. The district explained that they sought to convene the meeting with a mediator because they thought the mediator’s presence would help the parties to have a “successful meeting.” The hearing officer noted that when the parent learned of the intended mediator’s presence at the meeting, the parent thought that the district was seeking to alter a Team meeting to a mediation session contrary to the earlier BSEA decision. Once the parties realized the misunderstanding, they agreed to a facilitated IEP Team meeting and the hearing officer determined the matter to be resolved.

This case speaks to the importance of clear communication between parties and how a misunderstanding, if addressed early, can avoid a contentious and time-consuming dispute. It should have been a relatively simple matter, one would think, to explain at the outset in plain English the district’s reason for seeking to have a mediator present in the role of a facilitator—either or both of the district and the mediator assigned to the matter could have done so. The parties had obviously been embroiled in dispute previously, the parent was primed not to trust the district, and it would have been wise to take some extra pains to make sure the parent understood that s/he was not going to lose ground and might even benefit by agreeing to a mediator’s facilitation.

Parents Lose Again in Fight Against Referral to Outside Location for Extended Evaluation

King Philip Regional School District and Ken, BSEA #1400255, 20 MSER 72 (February 25, 2014, Oliver), clarifies at the district’s request an earlier BSEA order granting substituted consent to send referral packets to potential programs outside the district.

In the earlier decision, 19 MSER 244, the hearing officer had ordered a 45-day extended evaluation in a therapeutic environment outside of the public high school, and since the parents did not consent to the sending out of referral packets, he had granted “substitute consent” for the district to go forward. Both parties were represented by counsel in the earlier proceedings. It is not clear whether parents were represented in the instant matter.

Ken is a 16-year-old student with multiple disabilities, including serious mental health issues. In the initial decision, the hearing officer confirmed that the student’s behaviors placed himself and others at risk, warranting an extended evaluation. The student’s parents opposed the district’s proposed locations for the evaluation and refused to participate in the process even though they had initially requested updated evaluations due to the onset of the student’s mental health issues. The parents continued to assert in the current phase of the proceeding that the BSEA has no authority to compel participation in the extended evaluation process or to override their lack of consent to the evaluation.

The hearing officer restated his earlier findings and conclusions that the district has a right to seek an evidentiary hearing regarding the student’s need for an extended evaluation, to seek substituted consent for such an evaluation when parents refuse to provide consent, and to send out packets to those programs the district considers appropriate. He also asserted that the district has a right to determine the location where the extended evaluation will take place, and does not need to answer a parent’s objections at an evidentiary hearing to justify its choice. He states that “[a]t the conclusion of the EE, if Parents disagree with the IEP/Placement proposed by KP, as a result of the EE, they may seek a BSEA Hearing.”

The clear implication of this ruling is that parents may not at the outset of an extended evaluation raise substantive questions about the appropriateness of the location or the assignment of particular evaluators. We respectfully disagree with this reading of the law. Under the broad jurisdictional provisions of the IDEA, a parent may file a due process complaint on any matters relating to the “identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child.” 20 U.S.C. §1415(b)(6); 34 CFR 300.507(a). We believe this would include issues related to an extended evaluation. One can easily imagine any number of issues a parent could properly bring to the BSEA under this jurisdictional provision concerning the proposed environment for an extended evaluation. What if, for example, the parents can present evidence casting doubt on the licensing of those who would perform an extended evaluation, the presence of peers at the location who are known to the student in question and who pose a particular risk to him, or the lack of an essential service or accommodation that the student needs in order to access the program?

In the instant matter, the hearing officer concluded that since the BSEA has no enforcement mechanism to compel a parent to participate in the extended evaluation process, the district had no choice but to proceed to Superior Court to enforce the BSEA order.

Some early events in the chronology of this case help to shed light on the parent’s seemingly intractable position. The parents insisted that Ken could be evaluated while he remained at King Philip High School because they believed that evaluating him in his actual placement (in the public high school) would produce more accurate results. The hearing officer pointed out that both parents and several close relatives of the student had attended King Philip Regional High School and attendance at the program was extremely important to the family. The hearing officer questioned, however, whether the pressure for the student to attend the high school was a cause for some tension and conflict since the student expressed a desire not to be at the high school and found that “[u]nder the circumstances, to attempt to do an extended evaluation in a large public high school where Ken experiences such frustration and distress would be unproductive and inappropriate.”

In somewhat of an understatement, the hearing office found that the relationship between the parents and the district was “completely non-trusting and essentially non-functional.” At an earlier point in the case, communications ceased altogether between the parents and the school district. When the parents shut down contact between the district and student’s private therapist and hospital team clinicians, the school in turn filed a 51A. When parents become so entrenched in their position, it is often the student who pays the ultimate price. This is a young transition-age student with serious emotional challenges who clearly expressed his desire not to be in the high school and who is missing critical educational services that will impact his ability to be a successful, independent adult.

In Order to “Recover” at a Recovery High School, a Student Has to Get There on his Own

In her ruling at Billerica Public Schools, 20 MSER 68 (February 21, 2014, Figueroa), the hearing officer dismissed the parents’ request that the BSEA order the school district to provide transportation to a student whom the parents had enrolled at a Recovery High School (an “RHS”). The student, 17 years old, had been found eligible for an IEP because of issues related to Type 1 diabetes and social-emotional concerns. He also had been diagnosed with a Substance Abuse Disorder—the key for eligibility to enroll at an RHS. The parents had rejected an IEP proposed by the district and made a unilateral placement at an RHS.

While the Recovery High School statute, G.L. c. 71, §91, requires funding of tuition by a student’s home district, the statute is silent about any requirement that the home district provide for transportation to and from the program.

The Recovery High School statute defines an RHS as “a public or collaborative program for students diagnosed with Substance Abuse Disorder or dependency as defined by the Diagnostic and Statistical Manual of Mental Disorders IV-TR .” (Note that the changes to the definition of this disorder in the revised DSM-5 should make little difference to the application of this statute. DSM-5 essentially combined the criteria for diagnosing Substance Abuse Disorder with those for Substance Dependency Disorder, and required the presence of two of the criteria to support the diagnosis.) An RHS is to provide a “comprehensive 4-year high school education, and a structured plan of recovery.” As of this writing there are four RHS’s in the state—in Boston, Springfield, Brockton, and Beverly—hardly enough to provide for the great numbers of students who struggle with substance dependence or abuse.

The common mission of these programs, as described on the website of an association of such schools, is: “To inspire students to reach their full potential and to prepare them to function successfully in a complex world, while reducing the high rates of relapse associated with teens in recovery, by providing a safe, sober and supportive environment where students and their recovery efforts are understood, valued and fostered.” A student does not need an IEP to enroll, but RHS’s are required to provide special education services if a student needs them.

In this case the district had proposed an IEP addressing certain non-substance related issues, with services to be provided in the student’s local high school.

If districts do not provide transportation to the Recovery High Schools, many students will not be able to access the services of an RHS. The omission of transportation is difficult to justify where other alternative school laws, such as those concerning charter schools, vocational schools and placements at special education schools outside the school district pursuant to IEPs, do provide for transportation.

The bottom line in this case is clearly the need for an amendment to the RHS legislation to provide for transportation to and from an RHS in the same way that students are transported to and from collaboratives, charter schools and IEP-supported outside placements. Some parents, including these, may be able to get the BSEA to order transportation to a Recovery School if they can show that the district’s proposed placement at another location cannot provide a FAPE, but the costs and complications of pursuing that line is daunting for most, and the threshold question of eligibility for an IEP in the first place may block this route to transportation at the outset. Any solution to the problem ought to capture all students who need the service, not only those who can qualify for an IEP then prove their district’s proposed placement to be inappropriate.

We note here in passing, as we have noted in this quarter’s commentary on another matter involving children who are hospitalized (see Milford), that substance abuse or dependence, so very often a manifestation of underlying difficulties with learning and/or with social/ emotional development with which a student tries to deal by self-medicating, ought to trigger a school district’s child find obligations. A school district’s early intervention—responding with evaluations and potential IEP development under IDEA—when indices of substance involvement arise could potentially head off major deterioration of a student’s life and prospects. Why limit a system’s arsenal of responses to the application of its disciplinary code when evaluation, education and supports could well provide a solution to the student’s underlying needs?

CONCLUSION

The decisions and rulings of the first 2014 quarter include a significant number of disputes in which parents essentially refused to let the process run its course (Quincy, Andover, King Philip) and paid the consequences when they later tried to argue that the district had not identified an appropriate program or completed the necessary steps of an evaluation process. The quarter also included a significant number of matters that resulted in the more restrictive placement among possible alternatives. In two of the six cases where the more restrictive alternative was the result, parents won a residential placement in one (Agawam) and an extended residential evaluation in the second (Weymouth). In four of the six, the school district prevailed in arguments to keep students out of the less restrictive environments that parents argued for (the two Springfield cases, Andover and King Philip). All of the cases upholding more restrictive settings involved students presenting alleged behavioral problems and safety risks. Will we see any reduction in that trend as Chapter 222 comes into play on July 1? One case (Billerica) highlights a need for transportation to be provided by districts to ensure that a helpful resource—Recovery High Schools—will actually help the students for whom it was intended. And the facts of one case (Milford) point, we believe, to the need for more rigorous monitoring and enforcement of a district’s child find obligations where obvious mental health and/or substance abuse issues signal a student’s serious—likely disability-related—difficulties navigating the challenges of his academic and social life.

All cases illustrate the constant struggle between the limitations of the school bureaucracies’ obligations under IDEA and the often desperate needs of the children in their charge. Hearing officers are called by their office to walk the delicate and complex lines that are drawn in that struggle and to resolve the issues that arise fairly and in keeping with the purposes of IDEA. The BSEA continues to serve the system well, adjudicating the painfully complex and extensively detailed disputes that come before it with a wise hand, compassion for the children whose interests the law is meant to serve, and a scrupulous regard for the boundaries of its authority.