INTRODUCTION

The third quarter of 2016 brings a total of seven BSEA decisions and fifteen orders and rulings.^[1] Two of the decisions concern parents’ requests for compensatory education in the context of home tutoring. In one case, the district erred by failing to respond in a timely manner to a medical practitioner’s note regarding the student’s need for tutoring (Lenox Public Schools). In the other, the district failed to obtain the parent’s informed consent before changing the student’s placement from full inclusion to home tutoring (Framingham Public Schools). Parents prevailed in both instances. In another decision (Boston Collegiate Charter School), the parent succeeded in reversing a suspension and obtaining compensatory education where the school’s own evidence established that the student’s misconduct constituted a manifestation of his disabilities. Parents were not as fortunate in three placement disputes (Belchertown Public Schools, Walpole Public Schools, and Abby Kelley Foster Charter School). Two (Walpole and AKFCS) involved pro se parents who failed to proffer sufficient evidence in support of their positions, while the third (Belchertown) presents interesting questions as to guardians’ choice of an unapproved program and the district’s failure to conduct meaningful transition planning. A final decision (Randolph Public Schools) considered the impact of guardianship on school district responsibility.

The rulings discussed in this commentary cover a range of issues. Three rulings (Westford Public Schools, North Middlesex Public Schools, and Natick Public Schools) concern the joinder of state agencies, including the Department of Children and Families (“DCF”) and the Department of Mental Health (“DMH”). Two rulings (Andover Public Schools and Arlington Public Schools) address the discoverability of certain information within the districts’ custody and control. Three rulings (Maynard Public Schools, Norton Public Schools, and Holyoke Public Schools) implicate the Individuals with Disabilities Education Act’s administrative exhaustion requirements. Other rulings deal with general rules of pleading (Shrewsbury Public Schools, Natick Public Schools) and stay-put (Medford Public Schools).

FIRST CIRCUIT/SUPREME COURT ALERTS

Although federal court decisions fall outside the scope of this commentary, interested readers are urged to review two First Circuitdecisions issued during the third quarter, Ms. S. v. Reg’l Sch. Unit 72, 829 F.3d 95 (1st Cir. 7/15/16), and Doe v. Cape Elizabeth Sch. Dist., 832 F.3d 69 (1st Cir. 8/5/16). In Ms. S., the First Circuit reiterated the principles that an IEP must address all of a student’s special needs, including social needs, and that the IEP must be reasonably calculated to provide the student with a meaningful educational benefit. In Cape Elizabeth, the First Circuit held that a student who achieved straight A’s could nevertheless be found eligible for special education on the basis of a reading fluency deficit, if the deficit constituted a specific learning disability under IDEA and if the student required special education and related services as a result of her disability. The decision contains useful language on the weight to be given “generalized academic measures” (e.g., grades) as opposed to “specific disability measures” (e.g., the GORT-5) in assessing both the existence of a disability and the student’s need for special education.

It is also worth noting that during this quarter the U. S. Supreme Court granted certiorari in Endrew F. v. Douglas Cty. Sch. Dist., 798 F.3d 1329 (10th Cir. 2015), cert. granted, 2016 LEXIS 4467 (U.S. Sept. 29, 2016) (No. 15-827). The Court is being called upon to interpret its prior decision in Board of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176 (1982). At issue is whether IDEA’s free appropriate public education (“FAPE”) standard only requires that an IEP provide an educational benefit that is more than de minimis, as the Tenth Circuit held in Endrew, or whether a higher level of educational benefit (such as the First Circuit’s “meaningful educational benefit” standard) is required. Obviously, this case has the potential for sweeping impact. Oral argument has not yet been scheduled.

Another potentially significant case pending before the Supreme Court, Fry v. Napoleon Community Schools, 788 F.3d 622 (6th Cir. 2015), cert. granted, 136 S. Ct. 2540 (U.S. June 28, 2016) (No. 15-497), is discussed below. The underlying dispute concerns the district’s refusal of parents’ request for a service dog to accompany their disabled daughter to school. At issue before the Court is whether the parents must exhaust administrative remedies under IDEA before bringing suit in court for money damages under the Americans with Disabilities Act (“ADA”), 42 USC §§ 12101 et seq., and the Rehabilitation Act of 1973, 29 USC §§701 et seq. Oral argument was held in that case on October 31, 2016.

Lenox: Student’s absence is excused; district’s failure to provide tutoring is not

Misunderstandings seem to abound among districts and parents alike as to the requirements of the home and hospital tutoring regulation, 603 CMR 28.03(3)(c). On the school side, this sometimes takes the form of unduly rigorous scrutiny of the parents’ medical documentation or undue delay in responding to such documentation. In Lenox Public Schools, BSEA #1605042, 22 MSER 117 (Byrne, 6/22/16), the hearing officer found that the district properly rejected an initial medical note that the parent offered in support of a request for home tutoring, but improperly failed to honor a second.

The first note was insufficient, the hearing officer held, because it neglected to address at least two necessary regulatory criteria: it failed to provide a medical diagnosis requiring confinement to home, and it failed to explain how the student’s health condition would affect the delivery of educational services at home and in school. The hearing officer noted that the district, following its receipt of that note, properly advised the parent about the deficiencies in the note and the elements that the note needed to contain. As the hearing officer observed, “[n]either a parent nor a health care provider can be presumed to know the regulations that govern school attendance obligations or publicly funded home instruction.” 22 MSER at 119. Therefore, she stated, a district “may, and often must” take steps to obtain additional information, including advising the student’s health care team of the regulatory and educational criteria. Id. She emphasized, however, that requests for additional information “may not . . . unduly delay the delivery of appropriate educational services to the health compromised student.” Id.

The hearing officer found that the district erred in one respect with regard to the first note: by rejecting the note because it was signed by a nurse practitioner, not by a physician. The hearing officer pointed out that, although the language of 603 CMR 28.03(3)(c), last reviewed in 2011, does require “a physician’s written order,” the Legislature has in the meantime expanded the scope of authority of nurse practitioners. Under MGL c. 112, § 801, as amended in 2012, whenever a law or rule requires a signature of a physician in relation to physical or mental health, that requirement may be fulfilled by a nurse practitioner. Thus, the hearing officer concluded, the verifying authority under 603 CMR 28.03(3)(c) has been expanded by operation of law to include nurse practitioners, and Lenox could not properly decline to accept the medical note on the basis of the nurse practitioner’s lack of such authority.

Several weeks after the first note, that parent submitted a second one. This time, the hearing officer found, the note met the minimum requirements of 603 CMR 28.03(3)(c) by providing “a medical diagnosis, an expected duration, and a statement that [the student] would, as a result of that condition, be unable to attend school and needed specialized educational interventions.” 22 MSER at 120. Once these requirements are met, the hearing officer stated, responsibility shifts to the school to seek any additional information necessary to develop an appropriate program of home instruction. Lenox failed either to seek such information or to make timely arrangements to provide the necessary tutoring. Therefore, the hearing officer concluded, the district violated its obligations to the student under 603 CMR 28.03(3)(c). Finding that the violation had continued for at least six weeks, she ordered the district to provide the student with six weeks of compensatory home instruction, to be delivered during the summer months.

The district tried to evade its responsibilities, first by arguing that it could not provide instruction during the summer because the student’s IEP did not provide for ESY services, and then by refusing to provide transportation to an agreed-upon “neutral location” (the town hall, half a mile from the nine-year-old student’s home). On the first point, the hearing officer distinguished compensatory services from ESY. Compensatory education is an equitable remedy, which a district may be required to provide at a time when the student would not otherwise be eligible to receive services. See, e.g., Murphy v. Timberlane Reg. Sch. Dist., 22 F.3d 1186 (1st Cir. 1994). Thus, the lack of an ESY provision in the student’s IEP had no bearing on the hearing officer’s ability to order delivery of compensatory tutoring during the summer. As for transportation, the hearing officer ruled that the district’s “choice to provide a necessary ‘home-based’ special education service off-site . . . comes with an obligation to make that service accessible to the Student.” Lenox Public Schools, BSEA #1605042, 22 MSER 136, 137 (Byrne, 7/15/16).^[2] If the parent could not or would not transport the student, she stated, the district must either provide transportation or arrange for tutoring to take place in the student’s home.

As the hearing officer stated, awards of compensatory education “are designed to return the student to the position or condition she or he would have occupied had the regulatory violation not occurred.” 22 MSER at 120. In this instance, it appears that the week-for-week award of compensatory services did just that. Parents and their advocates would do well to keep in mind the broad equitable nature of a compensatory remedy, and to seek compensatory education in any case in which it might be appropriate.

With regard specifically to home tutoring, parents and their advocates should remember that:

• A nurse practitioner, as well as a physician, may sign a home/hospital tutoring note;
• It is the district’s responsibility to explain the home tutoring documentation requirements to parents and health care professionals;
• A district, after receipt of a health care practitioner’s note for home tutoring, must inquire promptly if it believes additional information is necessary and may be held responsible for its failure to do so; and
• When a district chooses to provide “home” services outside the student’s home, the district must ensure that the student has a way to reach that site.

Framingham: District’s failure to explain placement options and stay-put rights leads to award of compensatory education

A different hearing officer ordered compensatory education in another dispute involving home tutoring, Framingham Public Schools, BSEA #1605247, 22 MSER 137 (Reichbach, 7/22/15). This decision is just as interesting as Lenox, but for different reasons. The Framingham case tackles a situation that we see too frequently: a district, without suspending the child, asks the parent to keep the student home because of his or her disruptive behaviors. Often, the district fails to inform the parents that the student has a “stay-put” right to remain in his or placement, which is what happened in this case. The hearing officer found that, because the district improperly changed the student’s placement to home tutoring without clearly informing the parent of the student’s stay-put rights, the district would be required to provide the student with compensatory education to make up for the 34 school days during which he remained at home with tutoring, instead of attending school and receiving his IEP program and services.

The student was a seven-year-old with ADHD and generalized anxiety disorder. His mother had accepted, and the district had implemented, an IEP providing for a full inclusion program. When the student’s behavior deteriorated, the Team reconvened. School staff recommended out-of-district placement, while the mother sought increased support within the inclusion environment. The mother signed a release to allow the district to explore out-of-district programs, but did not consent to a change in placement to such a program. Although the student’s IEP was amended to add some ABA services, it continued to propose placement in a full inclusion program.

After the student’s behavior worsened, the Team chair placed a brief phone call to the mother and proposed that the student receive home tutoring. The district subsequently sent the mother a form asking her to indicate whether she did or did not consent to tutoring. The district provided no information about other options. More specifically, the district failed to inform the mother that she had the right to insist that the student return to the inclusion classroom, which was his “stay-put” placement pursuant to 20 USC § 1415(j) and 603 CMR 28.08(7). The district also failed to inform the mother that she had the right to revoke her assent to tutoring at any time. The mother checked the box saying that she consented to tutoring. She testified that she did so because she believed that she had no other choice; she understood that the student was being suspended; and she thought that if she did not agree to the tutoring he would remain at home with no instruction at all until the district located an out-of-district placement.

At a Team meeting held several weeks later, the parent requested that the student return to school. The district refused, without informing the mother of his stay-put right to do so. He remained at home. Even when the parent explicitly invoked stay-put (through counsel) a month later, the district continued to refuse to allow the student to return to his placement. The district asserted that appropriate services were not available in that placement, that the district had offered to place the student elsewhere, and that the student was receiving more services through tutoring than he had received in the inclusion classroom. He returned to school only after the hearing officer issued a stay-put order requiring the district to readmit him.

The hearing officer’s analysis began with the principle that (with exceptions not relevant here) stay-put requires a student to remain in his placement pending the resolution of any dispute, unless and until the parent and district agree otherwise. The district attempted to argue that the parent had in fact “agreed otherwise” by consenting to change the student’s placement to home tutoring. The hearing officer found, however, that the parent’s signature on the district’s home tutoring form did not represent the type of informed and voluntary consent that is required in order to relinquish a right.

Examining the federal and state definitions of “consent,” 34 C.F.R. § 300.9 and 603 CMR 28.02(4), and IDEA’s requirement of prior written notice, 20 USC § 1415(b)(3), (c), the hearing officer explained that in order for consent to be valid, a parent must be fully informed of all information relevant to the activity for which consent is sought; the parent must understand and agree in writing to the carrying out of that activity; and the parent must understand that the grant of consent is voluntary and may be revoked at any time. Here, the hearing officer found, none of these conditions were met. Neither the phone call with the Team chair nor the tutoring form provided the parent with sufficient information. The district did not tell her that she had any options other than tutoring. The district’s communications verged on disingenuous. Although “[n]o one from the District told Parent explicitly that [the student] could not return to school, . . . no one told her that he could.” 22 MSER at 143. Similarly, although “no one from the District ever expressly told Parent that [the student] was being suspended or removed for behavioral reasons, no one from the District ever said anything to negate Parent’s belief that this was the case.” Id. In the circumstances, the hearing officer had no trouble concluding that the district failed to inform the parent fully of all information relevant to the change in placement for which her consent was being sought.

The hearing officer also found that the district had failed to notify the parent that her consent to the tutoring was voluntary and could be revoked at any time. When tutoring was first proposed to her, “it appeared to Parent that the District had made this decision already, completely excluding her from the process.” 22 MSER at 144. The district failed to explain to her what her other options were and failed to explain that she could revoke the tutoring consent that it extracted from her. Moreover, when she attempted to change her mind about tutoring and assert the student’s stay-put right, the district insisted that it had the right to rely on her previous (invalid) consent. Even assuming arguendo that that consent had been valid, the district failed to explain or even acknowledge her right to revoke it. See id.

Because the student had been deprived of his IEP program and placement without valid parental consent for a total of 34 school days, the hearing officer ordered the district to provide compensatory education. The form of the remedy was left to the Team to determine. (Of course, the parent would be able to return to the BSEA seeking enforcement of the hearing officer’s order, if a dispute were to ensue regarding the sufficiency of the compensatory services that the district proposed.)

We welcome the hearing officer’s emphasis that it is the district’s responsibility, not the parent’s, to ensure the parent’s informed consent, and that it is the district’s obligation to ensure that parents understand their options. Here, when the district denied the parent’s explicit invocation of stay-put, the district was either misinformed about the law or was deliberately violating it. Either scenario is reprehensible. Parents are not presumed to know the special education laws; districts are. This is why, as the hearing officer stated, “all of the [IDEA] safeguards impose obligations on school districts rather than on parents.” 22 MSER at 143. Districts owe parents the duty of understanding and explaining all relevant options, and honoring those options when the parents attempt to exercise them. As this case demonstrates, however, parents cannot necessarily rely on districts to know, explain, and uphold their rights. Parents should therefore educate themselves as much as possible, and when in doubt should seek advice from reliable non-school sources.

BCCS: Behavior need not be the same in all circumstances, in order to constitute manifestation of disability

In Boston Collegiate Charter School, BSEA #1610551, 22 MSER 120 (Berman, 7/5/16), unlike Framingham (discussed above), the student actually was suspended from school.^[3] This student, too, received an award of compensatory education. In this case, the hearing officer found that the school had illegally suspended the student, where the evidence completely failed to support the school’s determination that the student’s misconduct was not a manifestation of his disability.

At the time of the incidents in question, the student was a twelve-year-old seventh grader with an emotional impairment and attentional disabilities. He engaged in various forms of misbehavior, including swearing, slamming doors, running through the hallways, placing his hands on staff members, and refusing to follow staff instructions. The parent and district agreed to an extended evaluation by a child psychiatrist, who diagnosed the student with multiple psychiatric disorders, including ADHD, anxiety and fear, oppositional defiant disorder, and mood regulation issues. The psychiatrist recommended a therapeutic placement and the school agreed. At various suspension hearings, however, the school concluded that the student’s behavior was not a manifestation of his disability, within the meaning of 20 USC § 1415(k)(1)(E).

The hearing officer soundly rejected this conclusion, finding it unsupported by any credible evidence in the record. As she stated, “[E]ven if I completely disregard any arguments made by Parent on this issue, the overwhelming and uncontroverted weight of the School’s own documents and testimony establish[es] that the behavior addressed in each and every one of the five [manifestation determination] meetings held during the 2015-16 school year was ‘directly and substantially related’ to Student’s disability.” 22 MSER at 128 (quotation alluding to 20 USC § 1415(k)(1)(E)(i)(I)).^[4] She pointed out that the student was exhibiting the very same behavior that had first led school staff to suspect a disability. Moreover, she observed, both the independent psychiatrist and the school took the position that the student’s behavioral difficulties could only be addressed in a therapeutic educational setting. If his in-school behavior were not related to his emotional disabilities, the hearing officer reasoned, there would be no reason to recommend such a placement. Id.

The school, for its part, relied on its perception that the student could suppress his problematic behavior in certain settings or in the presence of certain adults, which led the school to conclude that the misbehavior was a conscious choice and therefore unrelated to his disability. The hearing officer found this conclusion to be unsupported by any clinical evidence. To the contrary, she stated, the independent psychiatrist’s findings showed that the student “has genuine psychiatric diagnoses and needs a therapeutic placement, not that he is simply a willful child who needs more correction or punishment.” 22 MSER at 128. She found it plausible that “a Student [who] feels supported, contained or even intimidated by the presence of his Parent, probation officer, or evaluator” might behave differently in their presence than with other adults, which “does not mean that he can ‘switch off’ his misbehavior at any time.” Id. (It is unclear from the decision whether an expert had opined on this issue.) As for the difference in the student’s behavior in different settings (he acted worse outside the classroom, despite the fact, the district argued, that being in class is more stressful), the hearing officer pointed to the independent psychiatrist’s finding that the student’s anxiety was “pervasive, and does not stop at the classroom door.” Id.

The hearing officer found that, excluding suspensions during the period before the student became eligible for the procedural protections of 20 USC § 1415(k) and excluding the next ten days of suspension pursuant to § 1415(k)(1)(B), the school had suspended the student for a total of thirteen days. Because the hearing officer concluded that the student’s misbehavior was a manifestation of his disability, she found that the school was not justified in suspending him. She ordered the school to provide him with thirteen days of compensatory education. As in Framingham, the details about compensatory services were left to the Team to determine in the first instance.

The parent also requested that the hearing officer order the school to expunge the unlawful suspensions from the student’s record. The hearing officer declined, citing the BSEA’s lack of authority under the student record statutes and regulations to do so. She suggested that the parent request addition of the hearing officer’s decision to the student’s record, presumably pursuant to 603 CMR 23.08. We note that the parent could use the same regulation, together with the appeal process outlined in 603 CMR 23.09, to pursue deletion of information about the suspensions from the student’s record.

Boston Collegiate Charter School stands as a useful reminder that, in order for misconduct to constitute a manifestation of a student’s disability, the behavior need not be beyond the student’s volitional control. The overly-narrow view espoused by the school in this case is at odds with the standard set forth in IDEA. As the hearing officer recognized, even though a student may present differently in different circumstances, his misbehavior, when it occurs, may nonetheless bear “a direct and substantial relationship to” his disability, within the meaning of 20 USC § 1415(k)(1)(E)(i)(I).

AKFCS, Walpole: Lack of expert testimony dooms pro se parents’ cases

Two decisions, Abby Kelley Foster Charter School, BSEA #1503566, 22 MSER 161 (Byrne, 4/15/16), and Walpole Public Schools, BSEA #1608291, 22 MSER 145 (Oliver, 7/28/16), exemplify a situation that unfortunately is all too common at the BSEA: parents proceeding pro se lose for lack of evidence. Had the parents in those cases sought professional advice, the outcomes might have been different.

The parents in AKFCS filed for hearing seeking the following additions to the student’s IEP: (1) monitored social interaction; (2) disciplinary options other than detention; (3) accommodations recommended by the Massachusetts DESE for students with a diagnosis of autism spectrum disorder (“ASD”); and (4) a weekly session of pullout specialized math instruction. The hearing officer found no basis in the evidence for any of these.

In support of their request for monitored social interaction, the parents relied on the report of a medical doctor, a psychopharmacologist. It is relatively common for parents to assume that a report or letter from a physician will provide sufficient support for a change in the child’s program or placement. Often that is not the case. Usually, as in this case, the physician performs “a medical examination not an educational one.” 22 MSER at 164. Here, there was no indication that the doctor had based his recommendations “on anything other than parental report and physical examination.” Id. As the hearing officer stated, “The role of the physician in special education matters is to identify the student’s medical condition and describe how that condition affects her/his functioning.” Id. at 165. The Team then uses that information to develop educational strategies. Id. To challenge a Team’s educational determinations, parents generally need to have credible recommendations from an expert, such as a neuropsychologist, who has education-related credentials and who has performed an education-related assessment. There was no such evidence in this case. Thus, the hearing officer declined to require the monitored social interaction that the physician had endorsed.

The hearing officer found no support in the record whatsoever for two of the parents’ other requests, that the IEP specify disciplinary options other than detention and that it provide pullout math instruction. The hearing officer specifically called attention to the lack of any evaluation on either point. Evaluation(s) by credible independent evaluator(s) would have helped the parents, first, by informing them as to whether the student actually required those elements in order to make effective progress (so that the parents could determine whether to advocate for inclusion of those elements in the IEP), and second, by providing relevant findings and opinions, which could have supported the parents’ position in the event of a dispute about that the appropriateness of those elements.

It appears that the parents may have framed their fourth request, for inclusion of ASD-related accommodations, too narrowly. They appear only to have challenged the actions of a Team convened in February 2014. As the hearing officer pointed out, the student was not diagnosed with ASD at that time (the diagnosis was given by the psychopharmacologist in July/August 2014). When the Team reconvened in December 2014, the district refused to add the accommodations because it disagreed with the ASD diagnosis. Although the outcome might have been the same, the parents appear not to have understood that they could and should have challenged the decision of the Team that had received the ASD diagnosis in December 2014, not the decision of an earlier Team that lacked that information.

Walpole presents a similar scenario. There, the district filed for hearing, seeking to change the student’s placement from partial inclusion to an out-of-district program. The student’s behavior had deteriorated; the district performed a full re-evaluation, including two functional behavioral assessments by a board-certified behavioral analyst (“BCBA”). The district’s witnesses included the BCBA, school psychologist, and special education coordinator. The father was the parents’ sole witness. The parents proffered no testimony or other evidence from an independent evaluator as to the student’s educational needs. No independent expert had either observed the student in his current placement or observed the proposed collaborative placement. (Indeed, it does not appear that the parents had even conducted such observations themselves.)

Given that the district’s evidence was “overwhelming and essentially unrebutted,” the hearing officer had no trouble concluding that Walpole had carried its burden of proof and shown that the student required a substantially separate program in order to receive a FAPE. 22 MSER at 148.^[5]

As noted with regard to AKFCS, the parents would have done better to involve independent evaluator(s), who could have advised the parents whether the proposed program would meet the student’s needs and whose opinions and recommendations could perhaps have provided the parents with evidence to oppose the district’s offering.

Belchertown: No reimbursement for unilateral placement in unapproved private school; no relief for inappropriate transition planning

Although the grandparents/guardians were not pro se in Belchertown Public Schools, BSEA #1604027, 22 MSER 181 (Figueroa, 9/23/16), they encountered some of the same problems as the parents did in AKFCS and Walpole. The case concerned three school years, 2014-15 through 2016-17. Prior to 2014-15, the district had placed the student for five years at a private out-of-district program, the Curtis Blake Day School, which did not offer a high school program. The grandparents requested that the student attend the Wilbraham-Monson Academy (“WMA”), an unapproved private school, for ninth grade. The district refused to support this placement, believing that WMA did not offer the specialized services that the student needed. At the start of ninth grade, the student attended another private approved school, the White Oak School, as her stay-put placement. The district then offered White Oak as her placement pursuant to an IEP. The grandparents accepted the proposal for a private day school placement, but rejected White Oak as the location. They then removed the student from White Oak and placed her unilaterally at WMA.

After the start of the 2015-16 school year, the district convened a Team and proposed an in-district partial inclusion program. At the end of the year, the Team developed another IEP, proposing the same program for 2016-17. The grandparents sought reimbursement for WMA for all three years.

The hearing officer concluded that the grandparents had failed to carry their burden of proof. As to the 2014-15 school year, the hearing officer found that White Oak was appropriate. The hearing officer observed that the grandparents had failed to offer the Team (or, it appears, the hearing officer) any expert opinion to the contrary. Moreover, the hearing officer stated, the grandparents had accepted an IEP proposing placement in a private special education school, which WMA clearly was not. The hearing officer described WMA as “a private, general education school that could not and did not offer Student the level of specialized instruction/services which she required.” 22 MSER at 192. Thus, the grandparents were precluded from obtaining reimbursement for WMA even assuming arguendo that White Oak was not appropriate.

Possibly the grandparents could have argued that WMA met the student’s special needs in some way during 2014-15, even though it did not provide formal special education. The grandparents would have needed an independent evaluator, however, to explain why the proposed White Oak placement failed to meet the student’s needs and why WMA did meet them. There was no such testimony in the case.

As for the 2015-16 school year, the hearing officer observed that there were no new evaluations for the Team to consider when it met near the start of that year. The hearing officer found the student’s performance at WMA, discussed at that meeting, to be “concerning” and “up and down.” 22 MSER at 193.

In light of the dearth of evaluative information and the implied lack of progress during the student’s previous year at WMA, it is curious that the hearing officer upheld the proposed change to a partial inclusion program at public high school for the student’s next IEP period. First (although the grandparents appear not to have raised this point), Section 504, which is applicable to all special education students, requires a district to evaluate a student before proposing any “significant change in placement.” 34 C.F.R. § 104.35(a). The proposed change from an approved private special education school (White Oak, on the student’s previous IEP) to an in-district inclusion program would certainly appear to be significant, yet Belchertown did not conduct any new evaluation. The district’s most recent evaluations, which had occurred a full year before, supported the district’s decision to place the student at White Oak, not in an inclusion setting. Second, if the student had improved over the course of one year at WMA, such that the district was able to propose jumping from a very intensive program (White Oak) to a much less intensive one (the in-district offering), then it would seem likely that WMA appropriately met her needs in 2014-15. This is directly at odds with the hearing officer’s finding that WMA was inappropriate.

The IEP for 2016-17, unlike 2015-16, was preceded by a district re-evaluation. The hearing officer credited the testimony of one evaluator in particular, the school psychologist, who “presented as a knowledgeable professional capable of assessing student’s needs and of making reasonable recommendations for her.” 22 MSER at 195. By contrast, “Grandparents presented no expert testimony to counter [the psychologist’s] recommendations.” Id. The grandmother and student had observed the proposed program but their conclusion about its inability to meet her needs did not count for much, especially in light of the special educator’s testimony about “the family’s lack of knowledge and misunderstanding of the program.” Id. at 194. Thus, once again, we see the importance of testimony by expert evaluators and observers, and the consequences for parents/guardians and students when such testimony is lacking.

The final issue in Belchertown concerned the district’s failure to conduct appropriate transition planning. The hearing officer agreed with the grandparents that the district had violated its transition-related FAPE obligations, first, by failing to engage in any transition planning at all during an April 2014 Team meeting (at which point the student was already 14), and thereafter by proposing only very general transition plans, identical to each other, that “fail[ed] to delineate specific, pertinent actions that may allow Student to reach her post-secondary goals.” 22 MSER at 196.

We frequently see transition plans that contain generic information, or simply recap IEP goals, and that remain the same or similar from year to year. It is heartening to see the hearing officer’s emphasis on the importance of transition planning and the need for the transition plan to be a specific, individualized, “fluid document that must at all times respond to [a student’s] needs, progress, preferences and interests.” 22 MSER at 196.

In light of this acknowledgment, however, the hearing officer’s ultimate conclusion is puzzling. The hearing officer failed to order any relief for the district’s repeated violations of its transition-related obligations. Indeed, she failed even to find that the district had violated FAPE. The reason given for this conclusion is especially concerning: “[S]ince Student has not participated in any of the programs offered in Belchertown, the deficiencies in the Transition Plans are insufficient to render the proposed IEPs inappropriate.” Id.

We think that this reasoning is flawed. It is well-established that transition-related obligations form part of a district’s FAPE obligation, and that violations of transition obligations may constitute deprivations of FAPE. See, e.g., Dracut Pub. Sch., BSEA #08-5330, 15 MSER 78, 90 (Crane, 3/13/09) (“Transition services are part of, and not separate from, a school district’s responsibility to provide FAPE”). When parents and guardians seek reimbursement for unilateral placements, they must prove that the district’s proposed placement is not appropriate; however, the student need not participate in the proposed program in order for the parents to meet their burden of proof. See, e.g., Florence County School Dist. Four v. Carter, 510 U.S. 7 (1993); Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, 368 (1985); 20 USC § 1412(a)(10)(C). Likewise, parents should be allowed (indeed, we think that they are entitled) to try to prove that the transition-related provisions of a proposed IEP do not provide a FAPE, even without the student’s participating in the proposed program. The student’s participation (or lack thereof) in the district’s proposed program is not relevant to the determination of the transition plan’s appropriateness.

We think that in Belchertown, where the only reason given for not finding a violation of FAPE was that the student had not participated in the district’s programs, the hearing officer should instead have found the IEPs inappropriate due to the inadequate transition planning. The hearing officer could then have gone on to consider what form of relief to grant, which could have included compensatory education. Instead, the district was merely ordered to remedy the deficiencies in the student’s transition plan going forward. The unintended message to districts is that if a student is unilaterally placed, the district is not obliged to provide an appropriate transition plan. We do not believe that that is what the hearing officer meant. It is certainly not the result that Congress or the Legislature intended.

Randolph: Residency of guardian determines district responsibility for student over 18

We do not often comment on LEA assignment cases, but Randolph Public Schools, BSEA #1606409, 22 MSER 197 (Putney-Yaceshyn, 9/29/16), deserves a brief mention. The student in that case attended a residential school. The parents were divorced. Initially both parents lived in North Attleboro. During that time, the student reached the age of majority and her mother was appointed as her sole guardian. The mother subsequently moved to Randolph. The DESE issued an assignment of school district responsibility finding Randolph solely responsible under 603 CMR 28.10(3)(b) for the cost of the student’s placement after expiration of a period during which North Attleboro was fiscally responsible under the “move-in law,” MGL c. 71B, § 5. Randolph challenged this finding on the grounds that the father’s parental rights had not been terminated and that he maintained a relationship with the student. The hearing officer held, however, that “as Student has reached the age of majority and has a legal guardian, Mother, only Mother’s residence is relevant for purposes of assigning fiscal and programmatic responsibility.” 22 MSER at 198. (Note that the result could have been different if the student had been under 18, assuming that parental rights had not been terminated.)

Issues of district responsibility arise most often for parents and their advocates when determining which district(s) to pursue for reimbursement of the cost of a unilateral placement. If a student has reached the age of majority and has a full legal guardian (whether or not that guardian is one of the student’s parents), or if the student is under 18 and parental rights have been terminated, it is the residence of the guardian that controls. If the guardianship is a more limited one, then “the school district where the parent(s) lives or last lived shall be responsible.” 28 CMR 28.10(8)(c)(4).

Westford, North Middlesex, and Natick: The alphabet soup of joinder

The highly prescriptive nature of special education law makes it difficult for parents to navigate what can often feel like an unwieldly and disjointed system. Sometimes parents need only deal with their school district in order to obtain the instruction, services, and supports necessary for their child to receive a FAPE. Other times, parents must also draw upon one or a combination of state agencies, where those entities share a responsibility to ensure that their child receives FAPE.

This quarter, the BSEA issued rulings in three cases that considered whether certain state agencies were necessary parties to the litigation before it.

In Westford Public Schools, BSEA #1607922, 22 MSER 129 (Reichbach, 7/8/16), the hearing officer considered two motions. Whereas the parents sought to join DCF as a party, the DMH sought to dismiss itself as one.

The dispute was not new to the hearing officer, as she had previously determined that DCF was a necessary party to the case, but that DMH was not. At the time that DCF’s and DMH’s initial motions to dismiss were decided, the record showed that the twelve-year-old student, for whom the parents were seeking a therapeutic residential placement, carried an ASD diagnosis and had recently undergone at least two in-patient psychiatric hospitalizations. The record had also shown that the parents had applied for services for the student from DCF and DMH. DCF had denied the application due to the student’s failure to meet the agency’s eligibility criteria; DMH had not yet rendered its determination.

After the hearing officer initially dismissed DCF, the parents again applied for voluntary services for the student from DCF. Their application was again denied, and the parents did not appeal that denial. Nevertheless, the parents filed a motion essentially to re-join DCF as a party to the case.

Following the denial of DMH’s initial motion to dismiss, DMH also determined that the student did not meet the agency’s eligibility criteria. Of note, however, the parents appealed DMH’s decision, and the appeal was pending when DMH filed its second motion to dismiss.

The hearing officer applied the “joinder rule,” BSEA Hearing Rule I(J), both to the parents’ and to DMH’s motions. This rule permits the joinder of a party in cases where that party’s participation is considered necessary in order to fully dispose of the case.

In making a determination as to each agency’s necessity, the hearing officer also considered the BSEA’s authority to order each agency to provide services to the student. Under relevant law, a hearing officer may enter such orders only in accordance with the agency’s own regulations. Since the student was neither in DCF’s care or custody nor receiving any voluntary DCF services, the hearing officer found that no formal relationship existed between the student and DCF. In the absence of such relationship, the hearing officer concluded that she lacked the authority to order DCF to provide services to the student. Given DCF’s final determination regarding his ineligibility, any such order would have impermissibly contravened DCF’s own regulations. Therefore, the hearing officer denied the parents’ motion to join DCF as a party.

Although applying the same principles, the hearing officer reached a different conclusion with respect to DMH. Ultimately, the parents’ decision to appeal DMH’s denial of eligibility made all the difference. The hearing officer reasoned that, should DMH reverse itself on appeal and deem the student eligible for services, she could, in turn, order DMH to provide services for him in the future. Thus, the hearing officer considered DMH’s participation necessary to granting complete relief—at least until DMH formally and finally determined the bounds of its relationship with the student. Consequently, the hearing officer maintained DMH as a party to the case.

In North Middlesex Regional School District, BSEA #1612096, 22 MSER 156 (Figueroa, 8/5/16), a different hearing officer also considered whether DCF was a necessary party to the litigation.

In North Middlesex, the parents filed a hearing request against the school district and DCF, seeking funding for a residential placement from either or both. Unlike the student in Westford who was not receiving any voluntary services from DCF during the relevant time period, the student in North Middlesex had a DCF treatment plan and was assigned to work with a DCF social worker. In addition, DCF had arranged a neuropsychological evaluation for her. Although the student was not in DCF’s care or custody, the hearing officer found the existence of a treatment plan to be a sufficient basis on which she could potentially find DCF responsible for offering some services to the student in the future. Thus, the hearing officer maintained DCF as a party to the case.

If North Middlesex highlights the implication of the current delivery of services by DCF on issues of joinder, Natick Public Schools, BSEA #1611011, 22 MSER 159 (Berman, 8/16/16), emphasizes it.

In Natick, the hearing officer denied the parents’ motion to join DCF as a party. While the record contained evidence of DCF’s prior, albeit brief, involvement with the student, there was no indication that the student was currently either receiving or seeking services from DCF. As in Westford, the absence of a formal relationship between the agency and the student was fatal to the parents’ motion to join the agency in the proceeding.

The hearing officer considered, and rejected, the parents’ argument in support of joinder resting on DCF’s alleged collusion with the district. Even assuming that DCF acted improperly in exercising its functions, the hearing officer stated, the BSEA lacks authority to redress past wrongdoing by state agencies. Echoing the Westford and North Middlesex rulings, the hearing officer in Natick emphasized that the BSEA’s sole authority over state agencies concerns whether and to what extent it may require the agencies to provide services, consistent with their own regulations, in order to ensure that the student receives a FAPE.

Andover and Arlington: Discovery disputes

In two rulings this quarter, the BSEA determined whether, as part of the litigation, school districts had to produce certain documents for the parents or their experts to examine over the objections of the school district. The parents prevailed on a number of issues which, we note, routinely arise during the course of discovery in similar matters.

In Andover Public Schools, BSEA #1510008, 22 MSER 148 (Berman, 8/8/16), the parents filed a hearing request challenging the appropriateness of Andover’s proposed in-district language-based program. The parents then served the district with a document request seeking IEPs, Section 504 plans, individualized behavior plans, cognitive testing results and scores, grades, and MCAS scores for all students who would be enrolled with their child in the proposed program. The parents explicitly further provided that the district could “sanitize” the documents by removing information from which the peers could be identified. Andover sought a protective order, objecting to the parents’ request based both on relevance and on the privacy of student information under federal and state law.

With respect to the parents’ request for IEPs and 504 plans, the hearing officer rejected both of the district’s challenges. Indeed, she found that peer IEPs and 504 plans bore directly on the appropriateness of the proposed peer group and the ability of the proposed program to meet the student’s needs. As long as Andover removed personally identifiable information from those IEPs and 504 plans, she found, the district would comply with the operative student privacy laws.

On the other hand, the hearing officer granted Andover’s motion for a protective order with respect to the remaining documents, finding the request for such items “potentially overly intrusive without corresponding benefit.” 22 MSER at 151. Accordingly, disclosure of those documents was “not required of Andover at this time.” Id. Presumably the parents could seek to reopen the issue if, after receiving and reviewing the IEPs and 504 plans, they could demonstrate a specific need for some or all of the other documents.

In Arlington Public Schools, BSEA #1611465, 22 MSER 153 (Figueroa, 8/9/16), another hearing officer addressed the parents’ request that the school district gather up and produce text messages, notes, and test protocols concerning the student at issue, for whom the parents sought a private, therapeutic placement due to her complex psychiatric needs.

The bulk of the discussion concerned the parents’ request for text messages exchanged by the district’s employees or agents over the preceding two years. Arlington argued that culling such communications would be unduly burdensome, as they were not contained within the student’s educational record. Noting the “false sense of privacy” created by personal devices, the hearing officer distinguished the information from the device: “while the device may be private,” she stated, “the communications are not.” 22 MSER at 155. Reasoning that text messages “may bear direct relevance to the appropriateness of a student’s program and placement” or to the student’s academic and/or emotional functioning, the hearing officer ordered Arlington to locate and release such information if it exists. She rejected the district’s argument that doing so would be unduly burdensome.

The hearing officer also ordered Arlington to share test protocols related to standardized testing of the student directly with the parents’ expert. As she stated, this resolved any concern that producing the protocols to parents would infringe the test publishers’ copyrights. The hearing officer expressly declined to follow Grafton Public Schools, BSEA #1506275, 21 MSER 131 (Reichbach, 6/12/15), insofar as that decision allowed a protective order for materials not in the student record and denied release of test protocols. As the hearing officer in Arlington observed, “while BSEA Decision[s] and Rulings may provide useful guidance, they are not precedential.” 22 MSER at 155.

These discovery rulings hold promise for parents in future litigation, especially as it has increasingly become routine for school personnel to communicate about students via text messages and e-mail. Parents should proceed with caution, however, as school districts may similarly request that parents produce all texts messages and e-mails exchanged with their advocates and experts concerning the student. While attorney-client communications are privileged and therefore not generally discoverable, it is not yet clear that the BSEA will protect parents’ communications with nonlawyer advocates and experts. We believe that such protections do exist (for instance, under the work product doctrine), but this issue remains to be fleshed out through future litigation.

Maynard, Norton, and Holyoke: To exhaust or not to exhaust

The issue of administrative exhaustion under the Individuals with Disabilities Education Act (“IDEA”) has recently garnered national attention. Massachusetts tort/civil rights litigators have long awaited clarification as to whether the law requires them to file damages actions that involve special education students with the BSEA at the outset, or whether they may proceed directly to state or federal court, since the BSEA cannot award monetary damages. It appears that they may soon have the guidance that they have been seeking.

We anticipate that the U. S. Supreme Court will issue a decision analyzing IDEA’s exhaustion requirements within the next year, which may resolve a current split in the circuits. See Fry v. Napoleon Community Schools, 788 F.3d 622 (6th Cir. 2015), cert. granted, 136 S. Ct. 2540 (U.S. June 28, 2016) (No. 15-497). In the meantime, a plaintiff alleging non-educational claims on behalf of an IDEA-eligible student should continue to file his or her case first with the BSEA, no matter how futile this exercise may prove to be, in order to avoid the risk of later dismissal by a judicial body for failure to exhaust administrative remedies.

The BSEA issued three rulings this quarter concerning administrative exhaustion in the IDEA context. The end result was the same in each: the BSEA’s jurisdiction does not extend to claims sounding in tort, even when the tort arises in a school setting, and therefore, those claims must be dismissed. Nevertheless, the ambiguity surrounding the exhaustion requirement forces the prudent plaintiff to seek administrative relief initially in order to guard against the threat, however slight, of future dismissal by a court for not first going to the BSEA.

In both Maynard Public Schools, BSEA #1609990, 22 MSER 152 (Oliver, 8/8/16), and Holyoke Public Schools, BSEA #1606553, 22 MSER 174 (Byrne, 8/29/16),^[6] the parents filed tort/negligence actions seeking solely monetary damages stemming from physical and emotional abuse allegedly suffered by their children within their respective special education environments.

The hearing officer quickly disposed of the parents’ hearing request in the Maynard case, reasoning that their claims concerned neither the identification, evaluation, and/or special education programming of the student nor discrimination based on the student’s disability. Given that the parents had not invoked rights or remedies protected by federal or state special education law, the hearing officer determined that there were no claims or issues to exhaust. Accordingly, he granted the district’s motion to dismiss the hearing request for failure to state a claim upon which relief could be granted.

In Holyoke, which involved eight consolidated cases, a different hearing officer attempted to reconcile the IDEA’s exhaustion requirements with the BSEA’s limited jurisdiction. She recognized that although similar cases have not yet completely resolved this issue, the caselaw has “settled into a predictable groove.” Holyoke, 22 MSER at 175. Applying a three-part test to the tort claims before her to determine whether they could be maintained before the BSEA, the hearing officer ultimately deemed each prong unsatisfied. First, she stated, the parent did not assert or demonstrate any link between her child’s IDEA status and the alleged abuse, other than the child’s mere attendance in a special education program. Second, the monetary relief that the parent sought, in the form of damages, is not available under the IDEA. Third, the BSEA has no “particular expertise” in evaluating the basis of the tort claims. Id. at 176.

For these reasons, the hearing officer dismissed the parent’s hearing request. In doing so, she emphasized that the result placed the student on the same footing “as any similarly situated non-disabled student in the Holyoke Public Schools.” Id. at 177. With the Fry decision pending before the Supreme Court, it remains to be seen whether special education students alleging non-educational claims will continue to be obligated to clear an administrative hurdle that their non-disabled peers do not.

Like the Maynard and Holyoke cases, Norton Public Schools, BSEA #1609348, 22 MSER 169 (Byrne, 8/30/16), addressed the extent of the BSEA’s jurisdiction over the parents’ various statutory and common law claims. Unlike Maynard and Holyoke, however, the parents in Norton contended that the district denied their son a FAPE, engaged in discriminatory practices on the basis of their son’s disability and sex, and breached the parties’ settlement agreement, in addition to committing negligent and intentional torts. The district sought to dismiss all claims not brought under federal or state special education law, including those asserted under the ADA; 42 USC § 1983; the Massachusetts Constitution; the Massachusetts Civil Rights Act, MGL c. 12, § 11H; Title IX of the Education Amendments Act of 1972, 20 USC § 1681; tort law; and contract law.

Applying the three-part test discussed above, the hearing officer ruled that only the ADA and Section 1983 claims survived the motion to dismiss. The facts underlying such claims arose from the same set of facts that supported the parents’ special education claims, namely, the student’s status as an IDEA-eligible student. Norton, 22 MSER at 172. The hearing officer emphasized that, although she maintained the authority to develop a factual record common to all special education and related claims, she could only ultimately resolve the special education claims.

The hearing officer dismissed the parents’ various other claims with a short discussion. She concluded that the set of facts required to support a claim of sex discrimination under Title IX would not be rooted in the IDEA, that no private right of action exists under the Massachusetts Civil Rights Act, and that the BSEA’s limited jurisdiction does not extend to constitutional, contract-based, or tort claims.

The Maynard, Holyoke, and Norton rulings illustrate that parents, advocates, attorneys, and hearing officers will all benefit from concrete guidance as to when IDEA requires the exhaustion of administrative remedies prior to filing suit. Stay tuned.

Shrewsbury and Natick: General pleading principles

In Shrewsbury Public Schools, BSEA #1610565, 22 MSER 166 (Berman, 8/25/16), the hearing officer considered Shrewsbury’s motion to dismiss. The district argued that some of the parent’s claims were time-barred and should be dismissed.

IDEA imposes a two-year statute of limitations, subject to certain exceptions. In particular, 20 USC § 1415(D) provides, among other things, that the two-year timeline does not apply if the district (1) specifically represented that it had resolved the problem forming the basis of the complaint, or (2) withheld information that it was required to provide under federal law.

Following an initial dispute as to the sufficiency of her hearing request, the parent had filed an amended hearing request. In the amended pleading, the parent added allegations that the district made specific misrepresentations and withheld information. The district disputed these allegations. The hearing officer found that the factual dispute would need to be resolved at an evidentiary hearing. She therefore denied the motion to dismiss.

In Natick Public Schools, BSEA #1611011, 22 MSER 167 (Berman, 8/26/16), the same hearing officer considered another district’s motion to dismiss. The district challenged the overall sufficiency of the parent’s pro se hearing request and argued that particular claims were precluded. Construing the hearing request liberally, particularly in light of the parent’s pro se status, the hearing officer found that the parent had provided sufficient notice to Natick regarding the basis of her claims and the remedy sought. Observing that “it would be both premature and contrary to the mandate for notice pleading and liberal construction of pleadings to dismiss Parent’s claims” at this point, the hearing officer denied the motion to dismiss without prejudice. Id. at 168-69. The hearing officer stated that she and the parties would endeavor to clarify and/or simplify the issues and remedies at a pre-hearing conference.

Shrewsbury and Natick underscore the importance of considering just when in the course of litigation it makes sense for a hearing officer to dispose fully and finally of a parent’s claims, especially when the parent is not represented by counsel. In both cases, the hearing officer chose the more judicious course, allowing the claims to survive pending further factual development.

Medford: Stay-put

In Medford Public Schools, BSEA #1610177, 22 MSER 179 (Figueroa, 9/16/16), the parents filed a motion for interim placement several months after initiating their case with the BSEA. The parents sought an order placing the student at Beacon High School until the BSEA decided the case. In support of their motion, the parents submitted a letter from the student’s psychologist, expressly recommending Beacon as an appropriate interim placement.

The record showed that at the time the underlying dispute over the student’s placement arose, his last agreed-upon placement was at Medford High School. Applying stay-put principles, the hearing officer reasoned that the parents’ request, if granted, would impermissibly change the status quo. Absent a full evidentiary hearing on the merits or the agreement of the parties, the student was not entitled to a change in placement during the pendency of the dispute. The hearing officer therefore denied the parents’ motion. She raised the possibility that the parents might eventually prove at hearing that Beacon was an appropriate placement for the student. She also pointed out that the parents could request advancement of the hearing if they believed that remaining in his current placement was causing harm to the student.

^[1] Two of the decisions were issued during the second quarter, but were not sent to MSER for publication until the third. Several of the rulings will not be commented upon.

^[2] The transportation issue was the subject of a post-hearing motion for clarification of the decision, and thus was decided in a separate order.

^[3] In addition to multiple days of suspension on different occasions, there were two days on which the student missed school at the principal’s urging (she recommended that the parent keep the student home, while explicitly stating that the recommendation did not constitute a suspension). We believe that these should have been considered suspension days as well. It is unclear from the decision whether the hearing officer treated them as such.

^[4] The incidents considered at all five manifestation meetings involved similar types of misbehavior. On one occasion, the Team found that the misconduct was a manifestation of the student’s disability, but on four other occasions reached the opposite conclusion. The hearing officer, in light of her findings, did not need to discuss this inconsistency.

^[5] Approximately a month after the hearing officer’s decision, the parents filed a new hearing request, disagreeing with the hearing officer’s findings and alleging that the district had discriminated against them because of their race. Walpole Public Schools, BSEA #1608291, 22 MSER 199 (Putney-Yaceshyn, 9/30/16). The hearing officer dismissed the second hearing request with prejudice, finding that relitigation of factual and legal issues was barred on res judicata grounds and that the BSEA lacked jurisdiction over claims of racial discrimination.

^[6] The parents in this case were represented by the commentators’ firm, Kotin, Crabtree & Strong, LLP.