Introduction

During the second quarter of 2016, the BSEA issued four decisions and ten rulings covering a wide variety of issues. The Lincoln‑Sudbury and Littleton decisions touched upon eligibility for special education and Lincoln‑Sudbury also involved a claim for reimbursement at a non‑special‑education private prep school. One decision involved transportation issues and their impact on a student’s right to a free appropriate public education (Ipswich) and another (Barnstable) concerned the appropriateness of an IEP for an in‑district program and included a ruling regarding the sequestration of witnesses.

Two rulings (Berkshire Hills and Westford) covered joinder of state agencies such as the Department of Mental Health, the Department of Children and Families, and the Department of Developmental Services. Three rulings (one in Framingham and two in Taunton, BSEA #1600002) concerned the rights of non‑custodial parents to file and maintain claims at the BSEA. Other rulings discussed the requirement that a district provide transportation for students who lived part‑time with a parent in another town (Salem), stay‑put in the context of a partially rejected IEP (Taunton, BSEA #1606007), a strong ruling for parents regarding the right to a publicly funded independent educational evaluation (Shrewsbury), and compensatory services in the context of an eligibility dispute (Marlborough).

By the commentators’ count, parents secured favorable rulings in five instances (Salem, Shrewsbury, Marlborough, Framingham, and Taunton, #1600002—though this favorable ruling was quickly followed by a dismissal). The district won all four hearings (Lincoln‑Sudbury, Ipswich, Barnstable, Littleton) and secured two favorable rulings (Barnstable and Taunton, #1600002). Agencies were joined in two cases (Berkshire Hills and Westford), and one case involved a simple stay put order (Taunton, BSEA #1606007). As always, the hearing officers carefully considered parties’ claims and issued decisions that provide a wealth of information for districts and parents going forward.

DISPUTES OVER ELIGIBILITY FOR SPECIAL EDUCATION AND WHETHER THE DISTRICT OWES COMPENSATORY SERVICES

The determination of eligibility for special education or related services requires a two‑pronged inquiry: first, does a student have one or more disabilities; and second, does the student require special education or services because of the disability in order to make effective progress in regular education. The First Circuit Court of Appeals recently issued a decision regarding eligibility for a student with excellent grades and a deficiency in reading fluency. See Doe v. Cape Elizabeth Sch. Dist., No. 15‑1155, 2016 U.S. App. LEXIS 14421 (1st Cir. Aug. 5, 2016). Two decisions and one ruling in the second quarter at the BSEA dealt with parents’ claims that the school district was wrong in finding their child ineligible for special education services, and that the BSEA should order the district to provide services for the student or reimbursement to the parents to compensate for the period of time that the district failed to provide special education services. In two of the cases (Marlborough and Littleton) the districts later did find the student eligible. However, in Lincoln‑Sudbury, the hearing officer found no grounds whatsoever for the parents’ claims and had very harsh words for the parents for even bringing the claim at all.

The student in Lincoln‑Sudbury Regional School District and Wallis, BSEA #1502427, 22 MSER 47 (April 8, 2016) sustained a concussion in September 2012 during a field hockey game at school. Two weeks later, the student returned to school with a doctor’s note indicating that the student should not participate in gym class or field hockey games for two weeks and that she should be excused from tests and make‑up work for two weeks. The note further indicated that she may need homework accommodations if her symptoms returned. Lincoln‑Sudbury took notice of the note and communicated the content of the note to all relevant staff members. Teachers and staff followed the doctor’s instructions for the time period specified and continued to offer accommodations to the student beyond the two‑week time limit, but the student often did not take advantage of the accommodations. Even so, she earned passing grades and participated in sports and Model U.N. for the remainder of the year. The student did not visit the school nurse or her doctor due to post‑concussion symptoms either. No one noticed or reported post‑concussion symptoms of any kind, including the student and parents.

In math class, however, the student experienced some difficulty. After the student earned a C in “intensive” Algebra II, the most advanced class at that level, the math teacher recommended that the student drop below the “intensive” level to the “honors” level (which is still above the “college prep” level). This suggestion was consistent with departmental policy and apparently the suggestion for the student to take a less challenging math class had also been made during a previous year, before she was injured.

The parents requested that Wallis be given accommodations pursuant to a Section 504 plan. Lincoln‑Sudbury offered to meet with the parents to discuss the 504 process and requested updated medical documentation concerning Wallis’s condition. However, the parents never provided any additional information. They also insisted that the math teacher was to have no further contact with their daughter for the remainder of the year. The parents also requested achievement and cognitive testing, but when Lincoln-Sudbury sent the parents a special education evaluation consent form, the parents did not sign and return the form. The student refused to take her final exam in math and earned an “incomplete” in the course. However, she took all of her other finals as well as an Advanced Placement exam (“AP”), and earned high marks.

For the next school year (2013‑2014) the parents enrolled Wallis at Lawrence Academy, a regular education private college prep school, and asserted that Lincoln‑Sudbury should reimburse them for the tuition because the district had not provided the student with a free appropriate public education.

Issues for hearing were whether Lincoln‑Sudbury had properly complied with doctors’ orders regarding the student’s re‑entry to school after her concussion; whether Lincoln‑Sudbury had complied with the requirements under the “Child Find” provision for identifying and evaluating students with disabilities 20 U.S.C. § 1412(a)(3), 34 CFR § 300.11, G.L. 71B, Section 3; whether the student’s medical issues impacted her ability to learn such that she became eligible for accommodations under Section 504; whether the student had been able to access the curriculum and/or make effective progress in her classes; and whether the parents were entitled to reimbursement for services they had provided to the student, including tuition for Lawrence Academy and math tutoring during the summer of 2013.

The moving party in a BSEA hearing bears the burden of proof, and the parents in this case failed to convince Hearing Officer Lindsay Byrne that they were entitled to reimbursement for their outplacement. The parents submitted four exhibits and apparently presented no witnesses, so only Lincoln‑Sudbury staff members testified. The first element of the parents’ claim concerned the student’s eligibility for special education services. Under IDEA and Massachusetts special education law, a student must be found to have a qualifying disability as well as a need for special education or related services. In this case the hearing officer found no evidence that the student met either prong of the eligibility test. The hearing officer found that the student did not meet the eligibility criteria for services under Section 504 (having a physical or mental impairment that substantially limits one or more major life activities). The hearing officer concluded that the impairment indicated in the doctor’s note—a two‑week limitation on varsity sports and homework—did not rise to the level of a “substantial” limitation on activities, particularly since no additional testimony or evidence was provided suggesting that the student had an impairment after returning to school.

Hearing Officer Byrne found that Lincoln‑Sudbury’s actions after the student returned from her absence, such as adhering to the doctor’s orders, providing regular education supports, and monitoring her transition back to school, were sufficient to meet the district’s Child Find obligations, particularly because there was no evidence that the student was struggling to learn or to access the curriculum. Therefore, the parents were not entitled to reimbursement of their requested expenses.

Hearing Officer Byrne went beyond the legal findings to express unusually harsh words criticizing the parents for bringing this claim against Lincoln‑Sudbury at all:

The lack of support for the Parents’ claims is as startlingly clear now as it was when they were first raised in May 2013. Indeed, the Parents’ vitriolic hyperbole does little to disguise the absence of factual and legal support for their position. Instead of facts the Parents have, in correspondence to and meetings with Lincoln‑Sudbury personnel, and throughout this administrative process, offered insults, threats, distortions, misleading and tautological arguments, designed, apparently, to intimidate, shame or coerce Lincoln‑Sudbury staff into actions not warranted by a reasonable view of Wallis’ educational experience at Lincoln‑Sudbury. I have no doubt that the Parents’ unwelcome behavior has had an unfortunate, outsized negative effect on the time, attention and morale of Lincoln‑Sudbury staff, and the corresponding interests of the students and taxpayers of the Lincoln‑Sudbury Regional School District.

Lincoln‑Sudbury, 22 MSER at 59. Even worse, the hearing officer suggested that this case could be one of the rare cases where the district might be entitled to recover its legal fees from the parents, which to our knowledge has never occurred in Massachusetts. According to the hearing officer,

If ever a matter merited a finding that it was brought for an improper purpose it is this. The record clearly demonstrates that the Parents’ objections to Wallis’ 10th grade experience at Lincoln‑Sudbury began only after the math department recommended a change from one honors section to another honors section. Their claim to special education eligibility is patently frivolous, as is the claim to Section 504 protections. I find, based on the totality of the administrative record, that the Parents’ actions in pursuing IDEA and Section 504 claims at the BSEA were a bad faith effort to punish Lincoln‑Sudbury’s staff for the perceived “disrespect” of their daughter’s academic prowess and to justify public funding for her private school education.

Id. The use of the term “improper purpose” is significant here. IDEA awards reasonable attorneys’ fees to a parent who is a “prevailing party.” For a school district to be awarded attorney’s fees, the district not only has to prevail, but also has to make a showing that “the parent’s request for a due process hearing or subsequent cause of action was presented for any improper purpose, such as to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation.” 34 CFR 300.517(a). (IDEA also includes a fee provision if the parent’s attorney acts improperly, but these parents proceeded without counsel.) Therefore, the hearing officer’s finding that the litigation was brought for an improper purpose sets Lincoln‑Sudbury up for a possible fee claim against the parents in federal court.

There is always more to a situation than rises to the hearing officer’s attention, and it is possible that the student was truly struggling but that her parents were unable to organize an effective case. However, the hearing officer’s decision makes clear that the parents did not even come close to carrying their burden of proof.

The parent in Marlborough Public Schools and Bo, BSEA #1601297, 22 MSER 75 (May 17, 2016), twice had sought to have her son found eligible for special education and an IEP. The requests in 2010 and 2013 were denied by the district and then, in 2015, without any appeal of the previous denials, the parents filed a hearing request seeking an order from the BSEA that Bo was eligible for special education and that the district had to provide compensatory services for the years when the district should have found him eligible and provided services. While the case was pending at the BSEA, the district found Bo eligible for special education and promulgated an IEP, which the parents accepted.

The only remaining issue for a due process hearing was whether the district owed the student compensatory services beyond what was in the IEP for not finding him eligible sooner and, if so, what those services would be. The parents wanted the BSEA to order compensatory services consisting of 1 ½ hours of weekly tutoring with a vendor of the parents’ choice for every week that school was in session for the next five years. Not surprisingly, Marlborough had a different idea of what the BSEA should do. Marlborough’s position was that judgment should enter for the district without a hearing (summary judgment) because the district had now found Bo eligible, the parents had accepted the IEP, and the parents had never disputed the previous findings of no eligibility in 2010 and 2013 (and should not be allowed to do so years later for the first time).

Hearing Officer Ray Oliver was clearly bothered by the length of time between the findings of no eligibility and the request for hearing (even pointing out that the student’s mother was an attorney). The hearing officer allowed the parents’ case to go forward on the issue of compensatory services, but warned the parents that their claims were limited to wrongs committed by the district within the statute of limitations (no more than two years before the filing of the hearing request) and that there was the possibility that if the parents prevailed in proving the student was entitled to compensatory services, the hearing officer might reduce the amount or deny the compensatory services entirely because the parents had not given any written notice or response to the district’s previous findings of no eligibility. See Ms. M. v. Portland Sch. Comm., 360 F. 3d 267 (1st Cir. 2004). The hearing officer also noted that the BSEA cannot order a school district to hire Parents’ experts, citing Dracut School Committee v. Bureau of Special Education Appeals of the Massachusetts Department of Elementary and Secondary Education, 737 F. Supp. 2d 35 (D. Mass. 2010).

In Littleton Public Schools, BSEA #1504613, 22 MSER 102 (June 2, 2015), the school district first found the student ineligible for special education in the beginning of the 2014‑2015 school year and then found him eligible at the end of that school year. The student had been diagnosed with ADHD and had problems with organization skills, executive functioning, and slow processing speed. The student was on a 504 plan upon entering the tenth grade, and Littleton did a special education evaluation and held a Team meeting to consider eligibility for special education in October of that year. The district found him ineligible for special education because “Student was accessing the curriculum and progressing, although not maximizing his academic potential” (the school district is not required to have students maximize their potential). The hearing request asked for a finding that this determination of ineligibility in the fall was wrong and that although the Student was on a 504 plan, Littleton should be ordered to provide compensatory services for not finding the student eligible for special education.

The parents failed to persuade Hearing Officer Catherine Putney-Yaceshyn that the district was wrong in finding the student ineligible for special education in the fall of tenth grade because “it was reasonable for the Team to conclude that Student did not require special instruction to access the curriculum.” Littleton, 22 MSER at 110. The hearing officer also found that although Littleton “did not comply completely with every accommodation in the 504 plan that does not automatically entitle the Student to receive compensatory education.” Id. at 109. The hearing officer found that the deviations from the 504 plan, such as teachers not always signing the Student’s agenda book or teachers not always attending the required bi‑weekly meetings, did not deprive the Student of a free appropriate public education. Therefore, the hearing officer ordered no compensatory services. The hearing officer also denied the parents’ request to order Littleton to amend the IEP to add executive functioning services to be provided by a special education teacher or an outside expert. The only crumb thrown to the parents was the hearing officer’s statement that “it would be appropriate” for Littleton to hire someone with executive functioning expertise to consult with Student’s service providers.

Lincoln‑Sudbury, Marlborough, and Littleton, all involving eligibility and claims for compensatory services, present a cautionary tale on many issues: do not proceed to hearing without a solid evidentiary basis for your requests; do not proceed to hearing without qualified and persuasive expert witnesses who share your view of the case and the appropriate remedies; and do not engage in behaviors that, to a hearing officer, will look vitriolic, hyperbolic, insulting, threatening, distorted, misleading, shaming, or coercive. Although no judge in Massachusetts has ever ordered parents to pay for the district’s legal fees, parents should not put themselves in a position to blaze a trail on this issue.

MENTAL HEALTH AND EDUCATION

Parents who have children with learning disabilities have to advocate to get the educational services that their children need to succeed in school, but that struggle is so much more difficult and frustrating for parents whose children have a mental health issue in addition to other disabilities. School districts understandably often balk at funding therapeutic programs, arguing that “treatment” for mental health or developmental issues should be the responsibility of the social service agencies: The Department of Mental Health (DMH), The Department of Developmental Services (DDS, formerly DMR, the Department of Mental Retardation) and the Department of Children and Families (DCF, formerly DSS, the Department of Social Services). The agencies usually do not participate voluntarily in BSEA cases, because they contend that educational issues are outside of their mandate and are the responsibility of the school districts. Of course this dispute between social services and school districts about who is responsible for what greatly increases the frustration of families and students facing these complicated situations.

A significant number of cases filed at the BSEA involve the three-way dispute between parents, school districts, and social service agencies over whether the services or placement are needed for the student to access education (school district responsibility) or whether the services and placement are for “treatment” (social service agency responsibility). To make matters even more complicated, the courts and the BSEA have often pointed out that educational issues and treatment issues are often “intertwined.” See e.g., Agawam Pub. Schs., BSEA #1403554, 20 MSER 1 (Jan. 16, 2014); Lowell Pub. Schs., BSEA #12‑1912, 17 MSER 322 (Oct.19, 2011).

The BSEA’s authority over the social service agencies is delineated by statute and case law, and the hearing officers reiterate that authority in every case where there is a dispute about whether the agency is a necessary party to the litigation involving the parents and the school district. When the proposed party is a state agency, the hearing officer considers whether what the hearing officer may order is 1) in accord with the agencies’ legislative mission and administrative regulations, and 2) whether the services that the agency can provide are a necessary “addition” to the special education program provided by the school district such that without the agency services the student would not receive a free appropriate public education. The agencies fight to stay out of the BSEA cases on two grounds: 1) what the student needs is beyond the scope of what the agency can provide and/or 2) the services that the agency can provide are not relevant to the student’s ability to receive a free appropriate public education from the school district.

In Berkshire Hills Regional School District and Gale, BSEA #1403852, 22 MSER 45 (April 8, 2016), Gale, the 17‑year old student, had several psychiatric hospitalizations, which rendered her only intermittently and briefly available for educational services. Both the parents and school district presented evidence that Gale would be able to access much more of her education if DMH would increase the clinical and support home services that the agency was currently providing, which consisted of one hour per week of therapeutic mentor services and bi‑weekly in‑home therapy.

DMH did not dispute the claims that more services would help Gale access her education, but the agency insisted that it was already providing the most “robust” set of “wrap‑around community services‑based therapeutic services” allowable for Gale under the current DMH statute and its contract with the local providers. Therefore, according to DMH, ordering any more services would be contrary to DMH policies and therefore the hearing officer did not have the authority to order DMH to provide additional services.

It isn’t clear precisely what statute and regulations DMH was citing in challenging the hearing officer’s authority to order more services, but Hearing Officer Lindsay Byrne didn’t buy it. The hearing officer said, “I find nothing in the DMH statute or regulations, and certainly nothing in the governing judicial precedent, that compels a time frequency or functional limitation on DMH‑provided services to eligible clients.” Berkshire Hills, 22 MSER at 46. Therefore, the hearing officer denied DMH’s request to be left out of the case.

What may have influenced DMH’s reluctance to provide additional home services was the fact that the school district was offering a residential therapeutic placement for the student, which the student’s providers said would not be appropriate at the present time but could be appropriate in the future if the student made more progress clinically. It is not unreasonable for DMH to cease providing home‑based services when the student resides outside the home but the parents and district had not agreed to a residential placement and neither had a hearing officer ordered such a placement. In the interim, therefore, the hearing officer was not willing to dismiss DMH as a party.

In the other case in the second quarter involving the social services agencies, Westford Public Schools, Massachusetts Department of Children and Families, Department of Developmental Services, Department of Mental Health, and Ugo, BSEA #1607922, 22 MSER 77 (May 17, 2016), the parents of 12‑year old Ugo, who was diagnosed with autism spectrum disorder and a conduct disorder, anxiety disorder, and intellectual impairment, sought to bring into the proceedings (i.e., to “join”) all three social service agencies: DCF, DDS, and DMH. Ugo had been psychiatrically hospitalized at least twice in six months. When he was discharged from the hospital, his parents applied for voluntary services from DCF, and were denied; services from DMH, where the application was still under review at the time of the BSEA motion hearing; and services from DDS, which provided Intensive Family Support services.

Hearing Officer Amy Reichbach reiterated the standard for determining whether a social service agency can be ordered to participate in the BSEA hearing: first, whether complete relief can be granted without the participation of the agency (the general rule for joinder of parties) and secondly, whether what the BSEA might order from the agency would be in accord with the agency rules, regulations, and policies. DCF asserted that because the agency had already denied Ugo’s application for services and had neither care nor custody of Ugo, DCF should not be a party to the BSEA proceeding. The hearing officer agreed with DCF, pointing out that any decision ordering DCF to provide services or a residential placement after the agency had determined that Ugo was not eligible for DCF services, would be against DCF’s regulations.

However, the hearing officer kept DDS and DMH in the case. DMH remained in the case because Ugo’s application for services was still pending and until DMH denied eligibility, the hearing officer could decide that Ugo required residential services for non‑educational reasons, which would be the province of DMH. Similarly, the hearing officer ordered DDS to stay in the case because DDS was already providing family support services, and although DDS pointed out that providing a residential placement to a minor would be contrary to its regulations, the hearing officer pointed out that the BSEA might find that Ugo required additional home services, which would potentially be the province of DDS.

While the question of whether an agency’s role is necessary for providing a free appropriate public education to the a student can be complicated, there are a few simple principles that emerge from the cases involving joinder of state agencies: first, if the agency has already found the student not eligible for its services, the agency will probably be allowed to withdraw from the BSEA case because the hearing officer cannot order the agency to provide services if those services are not within the agency’s mandate; second, if the application for services is pending at the agency, the agency will likely be ordered to remain in the case, at least until the student’s eligibility is determined; and third, if the agency is already providing services, the BSEA will likely order the agency to stay in the case until the hearing officer determines if different or additional services are needed from that agency.

THE FAPE DISPUTE: DOES THE IEP PROVIDE THE STUDENT WITH A FREE, APPROPRIATE PUBLIC EDUCATION IN THE LEAST RESTRICTIVE ENVIRONMENT?

After a five‑day hearing in Barnstable Public Schools and Trina, BSEA #1601943, 22 MSER 91 (June 17, 2016), Hearing Officer Amy Reichbach found that Barnstable’s IEP provided a FAPE and that no additions or modifications were necessary to enable the student to make effective progress.

First, the hearing officer denied the parent’s request to sequester the district’s witnesses during the hearing. The parent (through her attorney) claimed that unless the witnesses were sequestered, they would learn from each other’s testimony and attempt to match their testimony to what they heard from other witnesses. Barnstable Public Schools and Trina, Ruling on Parent’s Motion to Sequester Witnesses, BSEA #1601943, 22 MSER 90 (March 21, 2016). The decision whether to sequester witnesses at a BSEA proceeding is entirely within the discretion of the hearing officer. Hearing officers do sometimes order witnesses to be sequestered, although there could be a benefit to having each side hear what the others are saying, so that they could respond appropriately. To get an order to sequester requires convincing the hearing officer that there is a real potential for bias or that the information presented would likely be subject to “tailoring.” The hearing officer in this case referred to the six factors that former hearing officer William Crane discussed in Stoneham Public Schools, BSEA #1300160 (Crane 2012) in the discussion before denying the parent’s motion.

Once the hearing commenced, the only issue was whether Barnstable’s IEP was reasonably calculated to provide Trina with a free appropriate public education in the least restrictive environment, and the hearing officer found that the parent had not met her burden to show by a preponderance of the evidence that the IEP did not meet that requirement. There was general agreement between the parent and the district concerning Trina’s cognitive profile. Trina is a thirteen‑year‑old student with Down Syndrome and a severe communication disorder. Her I.Q. is below the first percentile as are her verbal comprehension, perceptual reasoning, working memory, and processing speed scores. There was also general agreement that the partial inclusion model was appropriate for Trina: general education for all subjects except for direct services in speech and language, OT, ELA, and math. The principal claims by the parent (represented by counsel) were that the goals in Trina’s IEP failed to take into account her potential and that the IEP should include a technology goal; should fund her outside‑of‑school math tutoring; should provide pull‑out math and English in a room separate from other students to limit her exposure to “children with bad behaviors;” and should assign a different special education teacher to Trina.

Hearing Officer Reichbach dutifully discussed and rejected each of the parent’s claims. The hearing officer found that the setting provided by the district for ELA and math was appropriate, that Trina was able to refocus on her work even if other students displayed behavioral issues, and that Trina benefited from practicing language and communication skills with other students. The hearing officer also determined that the credentials of the ELA provider were adequate and Trina did not require ELA instruction from a certified reading teacher to receive FAPE. As for the claim that Trina’s goals were not commensurate with her potential, the hearing officer noted that the parent’s own experts could not measure or quantify Trina’s potential. Overall, the conclusion was that the parent had not met her burden to prove that the IEP was not reasonably calculated to provide Trina with FAPE in the least restive environment. Furthermore, the hearing officer found that the parent had not proven that the IEPs were not properly implemented or that she was entitled to reimbursement for additional services or evaluations that the parent paid for.

The parent here was basically looking for a “fine tuning” of the IEP and unfortunately received nothing for Trina from five days of hearing.

STANDING AT THE BSEA WHEN DCF IS INVOLVED

Rulings in two cases this quarter—Framingham Public Schools and Quinn, BSEA #1605247, 22 MSER 81 (June 16, 2016) and Taunton Public Schools and Maurice, BSEA #1600002, 22 MSER 111 (July 15, 2015), 22 MSER 113 (August 3, 2015)—dealt with the issue of whether a non‑custodial parent has standing to file or maintain a claim at the BSEA. The Massachusetts special education regulations give educational decision‑making rights to a student’s “parent,” defined as “father, mother, legal guardian, person acting as parent of the child, foster parent, or an educational surrogate parent appointed in accordance with federal law.” 603 CMR 28.02(15). When a child is in the custody of the Department of Children and Families (DCF), it is possible for the child’s parent(s) (e.g., father and/or mother) to retain educational decision‑making rights or for DCF to appoint a special education surrogate parent (SESP). Therefore, if DCF is involved with a family, it is still possible for a parent to retain educational decision‑making rights but if an SESP is involved, the parent has no such rights and—by extension—no standing to file a claim at the BSEA.

In Framingham, the parent had filed a claim for compensatory services at the BSEA, but while the case was pending the Department of Children and Families (DCF) took custody of the child. Framingham argued that the parent no longer had standing to maintain the claim because she had lost her status as a “parent” under the relevant regulations. After examining the custody timeline and the relevant case law and regulations, Hearing Officer Amy Reichbach concluded that the parent did have standing to pursue her complaint because she had custody and decision‑making rights both at the time of filing and at the time the claim for compensatory services arose.

After deciding that the mother had standing, Hearing Officer Reichbach went on to address the claim for compensatory services. The student had been struggling to make effective progress in his district program but was rejected from the one program that the district sent an application packet to. Framingham asserted that compensatory services were not owed because the parent agreed to tutoring in lieu of school attendance during the search for another out of district placement. However, the parent asserted that she only agreed to tutoring because she was under the impression that her son would no longer be permitted to attend school. The student had seven days with no services at all and then participated in tutoring between November 30, 2015 and January 22, 2016, when the hearing officer issued a stay put ruling, ordering Framingham to permit the student to return to school while a new placement was identified.

That the student’s move from a full inclusion placement to home tutoring constituted a change in placement was clear. It is also clear that a school district cannot unilaterally change a student’s placement. The hearing officer reviewed the three ways that a school district can properly change a student’s placement—with an IEP drafted at a Team meeting, after disciplinary process, or with an “otherwise agreed upon” change in placement between the parent and district. The hearing officer found that there was no appropriate Team or disciplinary processes. The question remaining was whether the parent’s consent to tutoring services constituted an “otherwise agreed upon” change in placement, a possibility that the hearing officer characterized as “unlikely but not impossible.” Framingham, 22 MSER at 89. IDEA’s definition of consent requires that the parent be fully informed of all information relevant to the activity for which consent is sought, that the parent understands and agrees in writing to the activity, and that the parent understands that granting consent is voluntary and may be revoked at any time. The hearing officer scheduled a hearing to further investigate whether the tutoring services constituted a procedural violation or not.

Hearing Officer Reichbach also considered the standing of a non‑custodial parent in the Taunton case, which was the subject of two separate rulings during the third quarter of 2015 but not published until this quarter. In Taunton, the student’s father filed a hearing request against Taunton, DCF, and the May Institute, alleging that the defendants had violated his son’s educational rights and his parental rights pursuant to IDEA. In its response to the hearing request, Taunton argued that the student was in DCF custody and the parent had no educational decision‑making rights, and that the parent therefore had no standing to bring the BSEA action. Hearing Officer Reichbach examined the evidence regarding whether the parent had custodial and educational decision‑making rights at the time he filed the hearing request. In an order dated July 23, 2015, the hearing officer refused to dismiss the parent’s hearing request on the basis of standing, but warned that the parent would have the burden of establishing that he had educational decision‑making authority on the student’s behalf as of the date he filed the hearing request.

On July 24, 2016, the day after the first order was issued, the district filed a motion for summary judgment and a request for an order of dismissal with prejudice. In support of its motion, the district submitted five exhibits, including an IEP signed by an SESP and an affidavit from the SESP stating that her appointment was active as of the day the hearing request was filed. Although the student had been returned to his parents’ custody in the interim,the hearing officer was convinced by the district’s evidence that the parent did not have educational decision‑making rights on the day he filed the hearing request, and granted Taunton’s motion for summary judgment. She denied the district’s motion for dismissal with prejudice, allowing the parent to refile his claims that Taunton’s IEP and placement denied his son a FAPE.

The rulings in the Framingham and Taunton cases make clear that the BSEA has jurisdiction over cases filed only by those educational decision‑making rights and that if DCF is involved in a student’s life, parents and advocates need to be careful to present evidence of decision‑making rights when challenging aspects of a student’s educational programming.

TRANSPORTATION AND FAPE

Hearing Officer Lindsay Byrne addressed the impact of divorced parents living in different districts on the district’s responsibility to provide transportation services in Salem Public Schools and Errol and Florence, BSEA #1603447/1603349, 22 MSER 60 (April 8, 2016). Two siblings attended the Salem Public Schools and each had a Salem IEP providing for special transportation services as a result of their disabilities. The parents, who were divorced and living in Salem (father) and Beverly (mother), accepted the IEPs. Salem refused to provide transportation between the mother’s house in Beverly, where the children spent 50% of their time, and the school in Salem. As a result, the mother had been funding alternate transportation services for the 2015‑2016 school year. The parents filed for hearing seeking reimbursement for the expenses that the mother had incurred as well as a finding that Salem had failed to provide services that were necessary for the children to benefit from the special education plans outlined in their IEPs.

In support of its position that it did not have to transport the children to and from their mother’s home in Beverly, Salem argued that the district’s transportation responsibilities were limited to the geographic boundaries of Salem, that it was not required to accommodate the personal housing choices of parents, that it would be inequitable to require Salem to provide out‑of‑district transportation to students with disabilities and not to students without disabilities, that providing the transportation as requested would devastate the district’s budget, and that it was a “slippery slope” between providing transportation from Beverly and providing transportation from somewhere much further away, such as Boston or Lenox.

Hearing Officer Byrne was unmoved by Salem’s arguments and found that there was nothing in the special education regulations to excuse Salem from its obligation to provide transportation to and from the mother’s house in Beverly. The hearing officer stated, “The fact that strict application of the regulation in this matter may work a hardship on the district is not a sufficient reason to ignore its plain meaning.” Salem, 22 MSER at 61. She further chastised Salem for characterizing the situation as due to a “parental housing choice,” stating that providing the transportation services was necessary to implement the IEPs as written, as accepted, and as necessary for the two students to benefit from their special education programming. The hearing officer ordered Salem to reimburse the parents for all out‑of‑pocket expenses they incurred to arrange for substitute transportation.

The IEP for the student in Ipswich Public Schools, BSEA #1602849, 22 MSER 65 (May 3, 2016) gave her a placement at the Cotting School. She was fifteen years old and had been diagnosed with global developmental delays, physical disabilities, anxiety, and Apraxia. The Cotting school day started for the student at 8:30 but the other student in the van started school at Cotting at 8:15, so Ipswich picked the student up at 6:33 am to avoid traffic later in the morning. The parents filed a request for a hearing to have the BSEA order a pick‑up for the student at least twenty minutes later.

Parents argued that the early pick up time was causing the student stress and anxiety that interfered with her eating and sleeping habits and therefore that the early pick‑up was denying the student a free appropriate public education. The only expert who testified in support of the parents was involved with the student’s muscular‑skeletal and neurological treatment. The doctor had never observed the student in her program or spoken with the student’s teachers, and relied on information from the parents in support of her opinion that the pickup time was problematic for the student.

Ipswich presented testimony from teachers at Cotting, the student’s van driver, and others in support of its argument that an early pick up and arrival at Cotting was in fact supporting the student’s right to a FAPE by allowing her to socialize with friends, help with the attendance for her class (a job that she enjoyed), and interact with staff. The student had been consistently late the year before when her pick‑up time had been between 6:50 a.m. and 7:00 a.m., and her later arrival at school left her “frazzled and out of sorts.” Ipswich, 22 MSER at 66. Ipswich also argued that the earlier pickup time would prepare the student for her likely transition to the upper school program during the 2016‑2017 school year, which required an 8:15 arrival just like the other student on the van. In the alternative, Ipswich indicated that it would provide the parents with mileage reimbursement if they wanted to transport the student themselves, or convene the Team to locate another placement closer to home. Ipswich also contended that the BSEA did not have jurisdiction over bus scheduling issues, which were a school administrative function and outside the purview of the BSEA.

Hearing Officer Rosa Figueroa disagreed that the student’s transportation was solely an administrative issue and pointed out that the BSEA has jurisdiction over transportation as a related service to the extent that transportation affects a student’s access to a FAPE. However, the hearing officer held that the earlier pickup did not deny the student a FAPE. The hearing officer noted that none of parents’ contentions—that the student was not getting enough sleep or eating enough food, was spending too much time waiting for school to start in the morning, and that her access to the curriculum was impacted—were supported by the evidence.

The parents did not present witnesses who observed the student’s alleged anxiety at home, at school, and on the bus due to the early pick‑up. As a result, the parents did not effectively challenge the apparently persuasive testimony from Cotting staff and the bus driver that the student was not impacted by—and perhaps even benefitted from—the early pickup.

STAY PUT

Taunton Public Schools and Tahlia H., BSEA #1606007, 22 MSER 62 (April 12, 2016) dealt with a stay put question. Where the parent had accepted the placement for her daughter in a substantially separate classroom within Taunton Public Schools, but rejected the omission of a one‑to‑one aide, the “stay‑put” placement for the student during the dispute between the parent and the school district was the substantially separate classroom that the parent had accepted. The IEP in question extended from December 3, 2015 to December 3, 2016. The student stopped attending school at the end of February 2016, and the parents filed for a due process hearing in March 2016. At the end of March 2016, Taunton moved for a stay‑put order, and Hearing Officer Lindsay Byrne confirmed that that stay‑put placement was the substantially separate classroom in the “last accepted” IEP, even though the parent had rejected the omission of a one‑to‑one aide.

A “FAILURE TO COMMUNICATE” REQUIRES THE DISTRICT TO PAY THE PRIVATE COST OF AN INDEPENDENT EVALUATION

Shrewsbury Public Schools and Yandel, BSEA #1508106C, 22 MSER 73 (May 9, 2016) provides clarification on the law concerning Independent Educational Evaluations (“IEEs”). Shrewsbury filed for hearing in 2015 to contest the parents’ request for a publicly funded IEE at Boston Children’s Hospital. Shrewsbury declined to pay for the evaluation at the state‑approved rate, asserting that its own evaluations were comprehensive and appropriate. The parents went ahead with the evaluation and paid the higher, private rate for the testing. The parties submitted the matter for decision on the documents to the BSEA, which issued an order that the parents were entitled to a publicly funded IEE and that Shrewsbury should reimburse the parents for their out‑of‑pocket costs. The parents subsequently requested full reimbursement from Shrewsbury, but Shrewsbury claimed they were only responsible for the (lower) state‑approved rate and sent a check to the parents for that amount. The parents filed at the BSEA, requesting a finding of noncompliance. Hearing Officer Lindsay Byrne held that “as a direct result of its refusal to arrange for the requested IEE, the School was obliged to cover the cost of the IEE at the substantially higher rate evaluation facilities routinely charge to Parents for the same service.” In response to the district’s claim that the only rate it was aware of was the state‑approved rate, the hearing officer stated that it was the school’s responsibility to investigate the various potential costs of special education services and that parents should not bear the cost of a school’s failure to do its research. This ruling is strongly supportive of the right to an IEE, and both parents and schools should take note of the protections available.