Introduction

The third quarter of 2017 was relatively quiet, bringing a total of two BSEA decisions and seven orders and rulings.

One of the decisions (Andover Public Schools) concerned parents’ request for compensatory education where the student, who had sustained physical injuries at a series of publicly‑funded residential placements, had gaps in his educational programming while he awaited admission to each placement. The other decision (Nantucket Public Schools) involved parents’ request for an out-of‑district placement (the Landmark School) on the basis that the student’s language‑based high school program had not enabled him to make measurable progress over the previous two school years. The District prevailed in both instances.

More than half of the rulings this quarter addressed discovery issues. Three related rulings grappled with a hotly‑debated issue among practitioners and advocates, namely the protection from disclosure of non‑lawyer advocate materials and communications. In the Waltham Public Schools rulings, Hearing Officer Amy Reichbach held that such materials and communications are indeed entitled to the protections afforded by the work product doctrine, vindicating arguments that parents’ attorneys and advocates have long advanced.[1] While these rulings are encouraging, they do not completely resolve the debate. In this commentary, we will further discuss those important developments and their potential implications. The other discovery ruling (Worcester Public Schools, Fitchburg Public Schools, and the Department of Elementary and Secondary Education), which concerned whether certain materials may be subpoenaed from the Department of Children and Families (“DCF”), held only some of those materials to be statutorily‑protected from disclosure. The remaining rulings addressed a variety of issues, including the inadequacy of parents’ prior notice to the district of their intent to place their daughter unilaterally and seek public funding (Medford Public Schools), the necessary joinder of DCF to a case (Norwood Public Schools and Department of Children and Families), and the BSEA’s lack of jurisdiction over claims relating to the denial of admission to a vocational‑technical high school (Minuteman Regional Vocational Technical School).

Andover and Quincy: Settlement offers and refusals: relevant to compensatory education claim?

The parents in Andover and Quincy Public Schools, BSEA #1602494, 23 MSER 127 (Berman, July 10, 2017), sought compensatory education for their 15‑year‑old son, who had a complex profile that included autism spectrum disorder and an intellectual disability. Andover had placed the student in three successive residential programs (Melmark New England, the May Institute, and Evergreen Center); the student had left each program fairly soon after being placed there. Due to gaps of several months between each of the placements, the student had received no educational services for more than half of the period at issue (a total of 14 out of 26 months). The parents sought compensatory education. Andover[2] and the parents disagreed strongly as to who was responsible for the student’s educational losses, with much of the dispute centering on whether Andover had offered interim services and, if so, whether the parents were justified in refusing them.

The hearing officer analyzed each of the three gaps in service separately. As to each, she asked: (1) “whether the last‑agreed placement was available to Parents”; (2) if not, “whether Andover acted diligently and reasonably to secure a successor placement”; and (3) “whether Parents’ conduct during the relevant intervals was reasonable or whether such conduct impeded the ability of Andover to secure a new placement for Student.” 23 MSER at 139.The hearing officer concluded that Andover was not legally responsible for the student’s failure to receive services during any of the intervals.

The first interval, a period of four months, began when Melmark stated its intent to seek an “emergency discharge” of the student, due to the parents’ revocation of medical releases that Melmark deemed necessary to serve the student and due to the parents’ assertion that the student was unsafe at Melmark. Andover sent referrals to other schools and the student ceased attending Melmark; however, Melmark never formally terminated the student’s enrollment, nor was a new IEP developed. The hearing officer found that, although the parents could reasonably have doubted whether Melmark was still available, in fact Melmark constituted the student’s stay‑put placement by operation of law, and thus would have been available to the student. She found that Andover had acted promptly and reasonably to locate a successor placement, and that the parents had cooperated fully in that process. Thus, the hearing officer stated, “The gaps in services here were not the fault of either party.” 23 MSER at 139.

After stating this conclusion, however, the hearing officer appeared to lay the blame for the student’s lack of interim services at the parents’ feet. Andover, through counsel, had offered interim services that were contingent on conditions to which the parents did not agree. The hearing officer faulted the parents for their failure to “provide[] any evidence that the proposed interim services were inappropriate.” 23 MSER at 139. In the “totality of circumstances . . . , including the potential continuing availability of [Melmark], diligence on Andover’s part in locating a new placement, and an offer of interim services which Parents rejected,” the hearing officer found that Andover was not liable for compensatory services during the four‑month gap. Id.

In our view, the hearing officer should not have considered Andover’s proposal for interim services at all, let alone given it the weight that she did. The offer of services was negotiated by counsel, contained contingencies, and was to be embodied in an agreement. This was clearly an offer of settlement. Testimony should not have been allowed on such an offer at all (or, if allowed as part of an historic explanation, should not have been considered probative). Regardless of whether the parents or Andover could have insisted on returning the student to Melmark, the parties appear to have agreed that he needed a different placement, as evidenced by their cooperation in the sending of referral packets. In that instance, we submit, a district has the duty to propose interim services through the Team process for a student who is out of school. A proposal made through counsel that is contingent on agreement to other provisions does not satisfy a district’s obligation to provide the student a free appropriate public education (“FAPE”) in this circumstance, any more than a settlement proposal with contingencies can substitute for a properly‑developed IEP and placement. To hold otherwise blurs the line between settlement negotiations and the Team process, and would allow districts to evade the Team process at will by proffering settlement proposals with contingencies (no matter how draconian) and then blaming the parents for their failure to accept. This is not the result that IDEA and c. 71B (or, we suspect, the hearing officer) intended.

The hearing officer next considered a two‑month gap between the student’s May Institute and Evergreen placements. Again, she found that the student had an available stay‑put placement, that the district had made timely referrals, and that the parents had cooperated in the referral process. Based on these facts, the hearing officer concluded that Andover bore no responsibility for the student’s failure to receive services during the interval.

Again, we question this result. The May Institute, like Melmark, had requested an “emergency discharge,” which the Team then decided to treat as a “planned termination.” 23 MSER at 133. Neither the district nor the parents sought to enforce the stay‑put IEP; the parties agreed that the student required a different placement. Thus, the existence of a stay‑put IEP here, as in the previous interval, is something of a red herring. As to the other factor on which the hearing officer relied (the reasonableness of the parties’ actions), the delay in locating another placement may not have been the fault of either party, but the delay nevertheless occurred. It was the district’s responsibility to provide the student with FAPE during that gap, yet it does not appear that the district took any steps to do so. When a student has significant behaviors making him difficult to place, as in this case, delays may occur even though parents and district are all trying hard to find a new placement. The district’s good faith in searching for a new placement does not excuse its ongoing obligation to the student in the interim. To hold otherwise is to cause the student (the most blameless party of all) to bear the brunt of an unfortunate situation by leaving him for a period of weeks or months without any services at all.

Lastly, the hearing officer considered the longest gap, an eight-month span between the parents’ removal of the student from Evergreen and their departure from Andover. The parents removed the student from Evergreen in mid‑February 2015 after they and his physician observed numerous unexplained bruises on the student’s body. In light of the questions surrounding the bruising, his physician recommended that the student not return to Evergreen. Once again, Andover and the parents cooperated to send out referral packets. The parents, through their attorney, requested that the student receive interim services, including home tutoring. Andover refused. In April 2014, counsel for the parties negotiated a draft settlement agreement, which would have provided for a one‑year placement in a day program. The draft contained “waivers, disclaimers and acknowledgments typically found in settlement agreements, including a detailed confidentiality/mutual non‑disparagement clause.” 23 MSER at 136. Counsel also prepared an agreement for interim services. These agreements were not consummated because the parents did not agree to the waivers that the district demanded. Meanwhile, the student remained at home without any services. In August 2015, the parties reached an agreement in principle at a prehearing conference in an earlier proceeding, subject to review by the parents’ attorney. After consultation with their attorney, the parents declined to sign the agreement. Four days before the family moved from Andover, the district held a resolution meeting at which Andover proposed an extended evaluation. The parents did not accept this proposal.

The hearing officer found that, “[w]hile Evergreen may have remained available, theoretically, as a ‘stay put’ placement, . . . Parents did not act unreasonably in declining to return [the student] there in light of the physician’s recommendations.” 23 MSER at 140. She also stated that, although Andover acted diligently in trying to locate a new placement, it would “be reasonable” (we would add, required) that Andover provide interim services. Id. She gave “the length of time that it would take to locate a new placement,” as well as the doctor’s recommendation, as reasons for this conclusion. Id. We note that it is usually impossible to know at the outset how long a placement search will take, and that the previous intervals (two months and four months) were hardly de minimis. Those intervals too, in our view, were lengthy enough to warrant services.

The hearing officer went on to state that Andover had fulfilled its obligations by offering services three times, each via a settlement proposal: first through negotiations with parents’ counsel, then at the prehearing conference, then at the resolution session. The hearing officer acknowledged the parents’ testimony that “they could not accept Andover’s offers because they were contingent on certain waivers and contingencies (e.g., waivers of attorney fees).” 23 MSER at 140. The hearing officer commented, “Parents are certainly entitled to make that choice.” Id. She then went on to penalize the parents for their choice, however, by finding that “Parents’ actions in rejecting offers for virtually everything they had been asking of Andover . . . precludes [sic] them from now recovering compensatory services from Andover.” Id. In her view, the parents’ positions in settlement negotiations were fair game when it came to the balancing of equities that is required when parents seek compensatory services.

We think that this is an incorrect and unfortunate result. As noted above, settlement proposals and statements made during settlement negotiations have long been considered inadmissible to prove or disprove a claim. There are strong policy reasons behind this rule, most importantly the policy in favor of encouraging voluntary settlement following open discussion, unfettered by the risk that a party’s proposals or reactions to proposals might later undermine the party’s position at hearing. IDEA itself shows Congress’s intent to protect this type of information from disclosure at hearing. Id. § 1415(e)(2)(G). (Andover was not a situation in which the district had made a written offer of settlement pursuant to 20 USC § 1415(i)(3)(D)(i); even if it had been, refusal of the offer would only have operated to limit recovery of attorneys’ fees, not to bar the claim.) An offer of services that is contingent on a waiver of attorneys’ fees, or on a waiver of stay‑put, or on a confidentiality clause, or on a non‑disparagement clause, or on anything else, is an offer with “strings attached.” Depending on the terms, it may in fact be no offer at all. It is certainly not comparable to a straightforward offer of services at a Team meeting or in an IEP, which is how the hearing officer seems to have treated the offers here.

We think that the hearing officer in this case, by commingling settlement discussions with weighing of the equities, inadvertently started down a dangerous road. This approach is likely to entangle hearing officers in the back‑and‑forth of unsuccessful negotiations to a hereto‑unprecedented degree. More importantly, this decision will have a chilling effect on the willingness of parents and their attorneys to engage in settlement discussions, including discussions at prehearing conferences and resolution sessions. If parents know that their refusal of a settlement proposal (even on the advice of an attorney, as in one of the instances here) can be held against them, they will likely deem it prudent not even to begin a settlement discussion.

Nantucket: A cautionary tale about expert reports

The basic facts of Nantucket Public Schools, BSEA #1511135, 23 MSER 160 (Byrne, September 1, 2017), follow a familiar outline: the parents sought an intensive, comprehensive language‑based program (in this case, at the Landmark School) for a student with specific learning disability, while the district argued that its partial inclusion program with co‑taught classes could meet the student’s needs. As readers of these pages know, the outcome in such a case will hinge on the details, and expert testimony will generally be key. Here, strong performance by the district’s experts and service providers, coupled with problematic testimony by the parents’ expert, resulted in denial of the relief the parents sought.

The student in Nantucket was a 16‑year‑old tenth‑grader with low average cognitive abilities. Because the parents had also requested compensatory services, both his ninth- and tenth‑grade (2015‑2016 and 2016‑2017) programs were at issue. During both years, the student had participated in the district’s “High School Language based program.” 23 MSER at 161. A Landmark representative had helped to design the program and continued to consult to it. The district argued that the student had made slow but steady progress, commensurate with his cognitive profile. An independent evaluator chosen by the district, who tested the student near the beginning and again near the end of ninth grade, testified that the student was “operating and acquiring academic skills in a manner and at a rate consistent with his intellectual potential, the irremediable disabilities of slow processing and dyscalculia, and his age.” Id. at 162. Although the evaluator testified that he would not expect measurable progress over the eight‑month testing interval even with appropriate special education, the student had in fact improved in some areas. A different expert, who consults primarily to parents, observed the program at the district’s request in the middle of the student’s tenth‑grade year. She testified that the program had all of the features recommended for students with language‑based learning disabilities (including those recommended for the student in evaluations by Children’s Hospital in 2012 and 2014). The hearing officer found that expert to be “knowledgeable, careful, candid and unaffiliated with either party.” Id. at 167. Moreover, the student’s teachers “credibly testified” to the techniques and strategies that they used, and to the progress that the student made as a result. Id. at 166.

To show that the student had not made effective progress, the parents relied primarily on the testimony of an independent expert who evaluated the student in the fall of tenth grade and observed him in his program in the spring. The hearing officer did not find this expert to be credible. Her description of the expert’s evidence provides a cautionary tale, which should serve as a warning to experts who testify in BSEA cases and to parties and attorneys who rely on them. For example:

· An expert’s written report should be flawless. In this case, the evaluation report contained “numerous errors or omissions that weaken reliability, e.g. an incorrect birthdate resulting in an incorrect age/norm related score; failure to use a timer on a timed test resulting in a lower score; incorrect name at various points in the report; inconsistent conclusions based on social‑emotional testing that lacked validity measures.” 23 MSER at 165. Because the “testing, scoring and reporting was marked by errors and inaccurate assumptions,” the expert’s conclusions were rendered “suspect” in the hearing officer’s view. Id. at 167.

° The lesson here is clear: experts should read and re‑read their reports before finalizing them, with the goal of making the report complete, accurate, and credible. To the extent possible, parents and their attorneys and advocates should do the same, and should question the expert about any potential problem that they detect.

· An expert who observes a program should take contemporaneous notes and should write an observation report. Here, the parents’ expert testified to her observation of five of the student’s classes, but she had taken no notes, written no report, and could not even remember the date of the observation. By contrast, the district administrator who had accompanied the expert had taken notes. Perhaps not surprisingly, the hearing officer found the expert’s testimony about the inappropriateness of the program “unreliable.” 23 MSER at 167. As the hearing officer explained, the expert “did not take notes, did not produce a contemporaneous report, had several significant memory lapses perhaps reflecting the three month gap between her observation and her testimony and testified to facts not observed, or directly contradicted, by [the administrator] who had accompanied [the expert] during the observation.” Id. Where the witnesses’ observations varied, the hearing officer stated, she credited the administrator’s version, “as I found her to be precise, open and disinterested.” Id.

° The lesson here is obvious as well: “if it’s not written, it didn’t happen,” as the adage goes. One assumes that most experts will take observation notes without being told to do so, but if in doubt a reminder may be in order.[1] The expert should be asked to write a report as soon as possible following the observation.

[1] Some districts still maintain that they will only grant access to observe a program if the observer agrees to provide the district with a copy of his or her notes at the conclusion of the observation. As the DESE has explained, imposition of this type of condition is not permitted. See Department of Elementary and Secondary Education, Technical Assistance Advisory SPED 2009‑2: Observation of Education Programs by Parents and Their Designees for Evaluation Purposes(Jan. 8, 2009), available at http://www.doe.mass.edu/sped/advisories/09_2.html. The advisory does not preclude districts from requesting copies of observers’ notes as part of discovery. That said, we believe that such notes are precisely the type of work product entitled to protection under the Waltham rulings, discussed infra.

One other interesting aspect of this case concerns the parents’ reliance on “‘vague’ and ‘not measurable’ IEP benchmarks and objectives as evidence that the 2016‑2017 IEP was inadequately drafted and/or insufficiently targeted to [the student’s] disabilities.” 23 MSER at 167. District witnesses appear to have acknowledged that some of the benchmarks “do not contain objective, numerically measurable goals for skill attainment,” but argued that “the progress reports submitted by the responsible teacher do report [the student’s] skill acquisition in measurable, replicable fashion.” Id. at 165. The hearing officer seems to have accepted this argument that precise progress reports can cure imprecise goal language: “Where the benchmark language was imprecise the teachers responsible for reporting progress, or lack of it, adjusted their responses to provide ‘measurable data’.” Id. at 167.

We question this conclusion. IDEA provides in no uncertain terms that an IEP must include not only “a statement of measurable annual goals,” 20 USC § 1414(d)(1)(A)(i)(II) (emphasis added), but also “a description of how the child’s progress toward meeting the annual goals described in subclause (II) will be measured.” Id. § 1414(d)(1)(A)(i)(III) (emphasis added). If the yardstick—the “how”—is supplied only afterward, in the district’s sole discretion via progress reports, then the IEP lacks an essential element from its inception, and parents lack all of the information that they need in order to determine whether to accept the IEP. As Nantucket points out, however, this type of flaw is not fatal, in that it alone would not require the student’s removal to Landmark from an in‑district placement that the hearing officer otherwise found appropriate. Even if she had found the benchmarks and objectives to be vague, the hearing officer stated, “The remedy for ‘vagueness’ is sending the IEP back to the Team to develop appropriately measurable objectives,” 23 MSER at 167—hardly the result that the parents sought.

Waltham: Non‑lawyer advocate’s records may enjoy protection from disclosure as work product; therapeutic/medical records remain susceptible to discovery

While discovery disputes permeate civil litigation, they can be particularly contentious in those special education cases where parents have engaged the services of a non‑lawyer advocate to help them navigate the complex scheme of special education statutes and regulations. Educational advocates serve an important role in special education disputes, which can be long, costly battles destined for litigation long before parents formally retain legal counsel. In Waltham Public Schools and Dorian, BSEA #1702306, 23 MSER 142 (Reichbach, July 20, 2017), a BSEA hearing officer for the first time explicitly recognized that the work product doctrine protects certain communications between parents and their advocate, prepared in anticipation of litigation, from disclosure during the hearing process.

In the course of discovery in Waltham, the district served subpoenas duces tecum on numerous non‑parties, including the parent’s non‑attorney advocate. The parent moved to quash and vacate the subpoenas, arguing that they sought privileged information protected from disclosure. With respect to the subpoena for her advocate’s documents, the parent invoked both the attorney‑client and work product privileges.

Relying on Massachusetts case law, rules of evidence, and BSEA rulings, the hearing officer easily disposed of the argument that the attorney‑client privilege extends to non‑attorney advocates and the parents on whose behalf they advocate. Because advocates are not attorneys, the hearing officer ruled, the privilege does not apply.[4] Citing the broad language of Mass. R. Civ. P. 26(b)(3), however, the hearing officer reasoned that the work product privilege may protect materials prepared by non‑attorney advocates. That rule, like its federal counterpart, protects documents “prepared in anticipation of litigation¼by or for [a] party’s representative (including his attorney, consultant, surety, indemnitor, insurer, or agent”). Therefore, the hearing officer held that documents composed by “any individual—attorney or non‑attorney—acting as the party’s representative in the matter” are protected by the work product doctrine, if the document was prepared in anticipation of litigation.” 23 MSER at 144 (emphasis added).

Applying work product protection in the context of BSEA proceedings serves important policy goals. To exclude non‑attorney advocates from such protection, the hearing officer noted, could chill communication among parents, their experts, and advocates, and hamper an advocate’s ability to effectively guide and advise parents.

Despite these objectives, work product protection is not absolute. First, the onus is on the parents, as the party claiming the privilege, to show that the subpoenaed documents were prepared (1) by the advocate, and (2) in anticipation of litigation and not for the broader purpose of the advocate’s work with the family (e.g., “exploring and securing an alternate placement” for the student). 23 MSER at 144. Even if the parents meet their burden, the documents may nevertheless be discoverable if the district can show that it has “a substantial need” for them “and cannot obtain their substantial equivalent by other means.” Id. In that case, discovery will go forward, although any such disclosure will exclude the advocate’s “mental impressions, conclusions, or legal theories. . . concerning the litigation.” Id. at 144‑45. The hearing officer ordered the parent, within seven days, to identify all documents as to which she claimed work product protection and to state the basis for application of the privilege to each document.

A subsequent ruling in this case emphasized both the importance of the work product protection and the volume of the non‑attorney advocate documents at issue. Waltham Public Schools and Dorian, BSEA #1702306, 23 MSER 153 (Reichbach, August 29, 2017). After the parent failed to comply in a timely manner with the hearing officer’s order to identify the documents being withheld from discovery and the reasons why, the district sought to compel production of all of the advocate’s records. For the policy reasons set forth in her initial ruling, the hearing officer declined to issue such an order. Notwithstanding, the hearing officer ordered the production of at least 325 emails sent by the parent to her advocate, which the parent had identified as protected by “‘attorney‑client privilege; attorney work product.'” Id. at 158. The hearing officer reiterated that the attorney‑client privilege does not apply to communications with a non-lawyer advocate. She also stated that, after reviewing the privilege log and the arguments of the parties, there was no other basis on which to withhold the communications. It is not clear from the ruling how the hearing officer knew that none of the hundreds of emails in question were entitled to protection under the other privilege asserted by the parent, namely work product. We urge that a hearing officer (ideally one that is not assigned to the matter) conduct an in camera review of materials to determine whether, and to what extent, the work product doctrine applies. The advocate’s handwritten notes and impressions, however, were ultimately protected.

Although the hearing officer clearly extended the work product doctrine to non‑attorney advocate records, her reasoning begs the question of just when litigation is “anticipated” so as to trigger the doctrine’s application. In most instances, parents retain the services of an advocate once a disagreement has arisen with the district and well before a hearing request is filed. By this logic, we are hard‑pressed to imagine a situation in which the work product doctrine would not apply, at least potentially, to advocate‑parent communications and materials from the start of the disagreement with the district. Until this issue is clarified, and until other hearing officers adopt the interpretation of work product protection set forth in Waltham (as we urge them to do), the prudent course is for advocates and parents to continue to limit written substantive communications, especially where the prospect of litigation appears uncertain.

As a secondary yet noteworthy point, the parent also moved to quash and vacate subpoenas seeking medical information pertaining to the student, including records concerning his mental health. Even though Massachusetts recognizes a psychotherapist‑patient privilege, the hearing officer stated that, where the student’s mental and emotional health is central to the dispute (as it was in Waltham), this privilege is effectively waived. Favoring “liberal discovery practices” that “encourag[e] the open exchange of information between the parties[,]” the hearing officer ordered the production of the student’s psychiatric and medical records, subject to conditions aimed at limiting disclosure among the district’s employees and providing for the destruction of the records at the conclusion of the litigation. 23 MSER 145‑46.

A student’s mental and emotional health will frequently be at issue in a BSEA proceeding, even in cases where the student’s primary disability is not an emotional impairment. Medical providers and parents alike can expect that the bounds of the student’s therapeutic relationship, which are protected in the ordinary course, may very well be breached as a consequence of the parents’ attempt to demonstrate that a district has failed to meet the student’s mental and emotional needs. As painful as this may be, especially where some students’ sense of trust in the privacy of their therapeutic relationship may be seriously undermined, this is a reality with which parents and their representatives will need to cope.

Worcester, Fitchburg, and DCF: Discovery of confidential materials

In Worcester Public Schools, Fitchburg Public Schools, and the Department of Children and Families, BSEA #1709036, 23 MSER 140 (Putney‑Yaceshyn, July 13, 2017), the hearing officer tackled another discovery dispute, this time in connection with Worcester’s appeal of a DESE assignment of financial responsibility to Worcester only, as opposed to both Worcester and Fitchburg. In an attempt to obtain information about the residency of the student, her biological parents, and her guardian(s), Worcester subpoenaed documents from DCF. (It is not readily apparent to us why the subpoenaed information could not be more easily obtained from another source.) DCF sought to vacate the subpoena on the grounds that DCF’s records are confidential and subject to disclosure only by order of the Superior Court.

The hearing officer declined to find that MGL c. 30A, § 12(5) required Worcester to resort to court to enforce its subpoena. She issued a protective order holding that DCF need not produce documents specifically protected by statute. Thus, DCF was not required to produce, for example, any responsive documents containing communications between a social worker and a client (protected by MGL c. 112, §§ 135A, 135B), adoption records (protected by MGL c. 210, § 5D), or reports of injured children (protected by MGL c. 119, § 51(E)). As to those documents, the hearing officer reasoned that Worcester had not made the requisite showing of relevance, especially given the personal and sensitive nature of the information contained therein.[5] For any other responsive documents (i.e., those not entitled to statutory protection), the hearing officer ruled that DCF must produce them in redacted form, excluding all information that did not pertain to residency. Before doing so, however, DCF was required to provide reasonable notice of the intended production to the “data subject” (i.e., the student and his or her parents/guardians), so that the data subject might move to quash the subpoena, if desired. In sum, while DCF may hold its records in confidence, it must nevertheless produce relevant, appropriately redacted documents in litigation before the BSEA, unless those documents are entitled to specific statutory protection.

Medford: Misinformation abounds; finding that parents terminated IEP process is fatal to their claim for reimbursement

In Medford Public Schools and Ann, BSEA #1709151, 23 MSER 149 (Oliver, August 21, 2017),[6] the district moved for partial summary judgment on the parents’ claim for reimbursement of tuition in connection with their daughter’s eighth‑grade placement at the Carroll School. Although there is a two‑year statute of limitations on special education disputes, the student’s educational history is crucial to the district’s argument on summary judgment and the hearing officer’s analysis.

The student, who had been privately placed for the entirety of her education, was found eligible for special education services in kindergarten. Less than one year later, the Team found that she no longer presented with a disability and terminated her IEP and services. The parents did not reject the finding of no eligibility, and the student remained privately placed. When the parents considered enrolling the student at Carroll prior to her third‑grade year, they contacted the student’s previous special education liaison at Medford to provide a new neuropsychological evaluation report and inquire as to Medford’s willingness to fund the student’s placement. After a series of failed attempts to schedule a Team meeting, the parents ultimately declined the meeting and informed Medford that the student had been enrolled at Carroll, where she remained from third through eighth grade. Despite the parents’ actions—all of which were consistent with well‑established special education processes and procedures—Medford failed to inform the parents that, absent further action by the Team, the district bore no programmatic or financial responsibility for the student by operation of the team’s finding of no eligibility years prior. The student’s IEP team would not reconvene for another six years, when the parents provided yet another neuropsychological evaluation report, at which point the student was found eligible for special education a second time.

In its motion for partial summary judgment, Medford argued that the student was not a special education student on an IEP during her eighth‑grade year, and, therefore, the district had no obligation to provide her with a FAPE. The parents countered that the district had misinformed them about the process when they had contacted the liaison prior to the student’s placement at Carroll for third grade, and, therefore, Medford had proper notice of the parents’ intent to unilaterally place the student and eventually seek public funding for that placement.

The dispute over “who said what, when” was a purely factual matter, the resolution of which would appear to depend on the hearing officer’s assessment of credibility following testimony. This would appear to be the quintessential “genuine issue of material fact,” which should defeat a motion for summary judgment. Instead, the hearing officer weighed credibility based on the father’s affidavit and other documents submitted by the parties. The hearing officer relied on the now‑deceased liaison’s contemporaneous notes to discredit the interpretation of events to which the father attested. Characterizing the parents’ allegations as “inaccurate,” the hearing officer gave little weight to them, commented that the parents had “short‑circuited this legal process,” and granted Medford’s motion. 23 MSER at 152. In doing so, the hearing officer appears to have exceeded the bounds of summary judgment by assessing credibility and determining disputed facts—activities that should have taken place only after a full hearing on the merits.

This ruling presents interesting legal questions and highlights a troubling reality seen far too often: the imbalance in knowledge of special education laws between districts and parents. While parents, given the collaborative nature at the core of special education processes and procedures, rightfully expect that their districts will inform them of their rights and options, parents cannot and should not assume that they are always being fully informed. This ruling also points up the confusion that can arise from the fact that our current special education regulations do not require a response to the finding of no special needs. Lastly, the ruling serves as a warning to practitioners that motion practice as they know it in the courts may take a different form at the BSEA.

Minuteman Vocational Technical School: Admission not negotiable

As vocational technical schools seem to rise in popularity, we have received questions about the intersection of special education and so‑called “program schools.” In Minuteman Vocational Technical School, BSEA # 1710814, 23 MSER 175 (Putney‑Yaceshyn, August 4, 2017), the hearing officer considered whether Minuteman was obliged to provide a FAPE to a special education student who had been denied admission. The answer: no. In short, the hearing officer stated, Minuteman, like all program schools in Massachusetts, need only provide a FAPE to those students who are enrolled. See 603 CMR 28.10(1). Since Minuteman had denied the student admission, that obligation never attached and remained with the student’s home district. In response to the parents’ challenge to the legality of the school’s admission policy, the hearing officer stated that the BSEA did not have jurisdiction over that issue, since the policy had been approved by the Department of Elementary and Secondary Education and did not appear to conflict with special education laws. n

[1] See, e.g., Robert K. Crabtree, BSEA Applies Work Product Protection to Non‑Lawyer Advocate Materials and Communications; The Ruling Also Stands as a Caution on Therapeutic/Medical Records, Kotin, Crabtree & Strong, LLP: Special Education Today (July 28, 2017), and Work Product Protection: Fishing for Parent Consultants’ Files at the BSEA Should Be Off Limits, Kotin, Crabtree & Strong, LLP: Special Education Today (June 5, 2015).
[2] Quincy was named as a party only because the parents had moved from Quincy to Andover on August 1, 2013, rendering Quincy fiscally responsible for the student’s services under the “move‑in law,” MGL c. 71B, § 5, until June 30, 2014. The parents, who had originally asserted prospective as well as compensatory claims against Andover, withdrew their claims for prospective relief after moving out of Andover on October 5, 2015.
[3] Some districts still maintain that they will only grant access to observe a program if the observer agrees to provide the district with a copy of his or her notes at the conclusion of the observation. As the DESE has explained, imposition of this type of condition is not permitted. See Department of Elementary and Secondary Education, Technical Assistance Advisory SPED 2009‑2: Observation of Education Programs by Parents and Their Designees for Evaluation Purposes(Jan. 8, 2009), available at http://www.doe.mass.edu/sped/advisories/09_2.html. The advisory does not preclude districts from requesting copies of observers’ notes as part of discovery. That said, we believe that such notes are precisely the type of work product entitled to protection under the Waltham rulings, discussed infra.
[4] In a subsequent ruling, the hearing officer declined to reconsider her conclusion on this point. Waltham Public Schools and Dorian, BSEA #1702306, 23 MSER 171 (Reichbach, Sept. 8, 2017). There, the parent urged the hearing officer to consider a federal case from the District of New Jersey, Woods v. New Jersey Dep’t of Education, 858 F. Supp. 51, 54 (D.N.J. 1993), in which the court held that non‑attorney advocate communications are protected by the attorney‑client privilege. Massachusetts, unlike New Jersey, does not have a statute or administrative rule requiring lay advocates to apply and obtain a license, comply with the ethical rules governing attorneys, and remain subject to administrative control by the agency charged with handling special education disputes. Those distinctions, the hearing officer reasoned, rendered Woods inapplicable.
[5]  This case is distinguishable from Waltham Public Schools, discussed above, in which the hearing officer ordered production of documents protected by the psychotherapist‑patient privilege. In Waltham, disclosure was ordered because the student’s mental and emotional health was in dispute. In Worcester, the sole disputed issue concerned the student’s residence.
[6] The parents in this case were represented by the commentators’ firm, Kotin,