Introduction

The BSEA had a busy first quarter of 2021, issuing five decisions and sixteen orders and rulings. Two cases, Springfield Public Schools and Ollie, which has been hotly litigated for some time, and Acton-Boxborough Regional School District, which comprises two separate matters but contains related issues and facts, were frequent flyers. Of the five decisions, the school districts largely prevailed in four—bad news for parents, unfortunately. The remaining decision, Belmont Public Schools and Devereux Advanced Behavioral Health, was a complex case with a unique resolution. As always, the rulings tackled a range of issues, including, but certainly not limited to, the enforcement of stay put (Hampshire Regional School District), procedural safeguards (Worcester Public Schools and Ryder), compliance with a prior BSEA decision (Whitman Hanson Regional School District), and joinder (Acton-Boxborough Regional School District). Given the number of decisions and rulings this quarter, this commentator will only discuss those that appear most significant.

Student’s IEPs were appropriately developed and properly implemented; parents not entitled to award of compensatory education

Shrewsbury Public Schools, BSEA #2000185, #2001827, 27 MSER 1 (Figueroa, 1/8/21), involved a twenty-year-old student diagnosed with Down Syndrome and an intellectual disability. The student also had complex medical issues, needing the use of an ileostomy bag, which required careful monitoring to avoid irritation and infection. After the student’s residential placement was terminated through no fault of his years prior, he began attending an in-district, substantially separate program (the Educational Learning Center (“ELC”)) that serves students with significant disabilities. Shrewsbury also provided the student with home-based services. The parents partially accepted a litany of IEPs, while continuously invoking the student’s right to stay put at a residential placement, should one eventually become available. As here relevant, the parents challenged Shrewsbury’s failure to provide the student overnight services relating to his medical needs, certain disruptions in his home- and community-based services, and the adequacy of his school-based services. The parents sought a host of compensatory services (totaling well over 2,000 hours). The Hearing Officer denied the parents’ claims in their entirety.

Like most special education cases, this case centered on whether, over the course of a few IEP periods, Shrewsbury provided the student a free appropriate public education (“FAPE”), the bedrock principle that requires that a student’s program be “reasonably calculated to enable the student to make progress appropriate in light of the child’s circumstances.” 27 MSER 22. Where a student is deprived of a FAPE, the student may be entitled to compensatory education, an equitable remedy designed to make a student whole but not to “provide a session-for-session replacement of lost time.” 27 MSER 23.

While the Hearing Officer stated that the parents were knowledgeable, loving, and committed to their son, her analysis was driven by her findings that they micromanaged every aspect of the student’s education and supplanted their beliefs for the expertise of medical, educational, and other service providers. These faults, the Hearing Officer reasoned, impeded the provision of services to the student to his detriment. For instance, the Hearing Officer credited evidence that the parents cancelled many sessions in violation of operative policies, requested staff changes, asked staff to leave the home, criticized staff, failed to cooperate with parent trainings, and requested that community-based services occur at a preferred location far from the family’s home. The Hearing Officer also found it compelling that the student’s home providers raised ethical concerns regarding the student’s medical procedures (although, we emphasize, according to record evidence, those procedures were essential to both the student’s health and dignity). Furthering her analysis, the Hearing Officer cited the parents’ own experts, who opined that the student was making slow progress within the ELC. One of the parents’ experts, however, concluded that the student was still functioning below his potential and recommended an increase in the intensity of his services. The Hearing Officer appears to have disposed of this conclusion and recommendation without express consideration, instead reasoning that the parents’ experts did not testify that interruptions in the student’s services resulted in the denial of FAPE.

In many ways, this case is restricted to its very specific and rather sensitive facts. It is nevertheless worth mentioning that the Hearing Officer took issue with the parents’ many lengthy IEP responses throughout the IEP periods at issue, which she found “unnecessarily complicated matters” and rendered the parents unacceptably uncooperative. 27 MSER 27. Parents can—and absolutely should—express their written concerns to the student’s IEP Team and seek to preserve the student’s rights; at the same time, they should also be mindful of the result that they are seeking to achieve in continuously disputing the minutiae of a student’s program and creating a complex web of stay put. Ultimately, the Hearing Officer credited Shrewsbury’s creativity and persistence over the parents’ actions at every turn. Any one of those actions may not have been sufficient to tip the scale in favor of the school district; when they accumulate over many years, however, they create what can be an insurmountable hurdle in an already steep climb for parents.

Despite its inappropriateness, a private school must remain a student’s stay put placement until another placement becomes available

Belmont Public Schools and Devereux Advanced Behavioral Health, BSEA #2103476, #2104694, 27 MSER 57 (Figueroa, 2/5/21) largely concerned a twenty-one-year-old student’s right to stay put at a private special education school, Devereux Advanced Behavioral Health (“Devereux”).[1]  The student, who had been diagnosed with autoimmune encephalitis resulting from a strep infection, had attended Devereux’s residential program for approximately four years. In July 2020, amidst the COVID-19 pandemic and at a time when the student had been without necessary medical care that adversely impacted his overall functioning, Devereux initiated an emergency termination of the student due to his unsafe behaviors, which included pacing, bolting, and aggression. Devereux delayed the termination date several times to allow Belmont and the parents time to locate an alternative program, which proved unsuccessful given the complexity of the student’s profile and his age. Ultimately, the parents filed an accelerated hearing request to enforce the student’s right to stay put at Devereux, among other things. Following, Devereux initiated its own action, which was subsequently consolidated with the parents’ pending case, seeking determinations that it was not an appropriate placement for the student and that, as a private special education school, it was not subject to the stay put provision of the Individuals with Disabilities Education Act (“IDEA”).

First, the Hearing Officer easily (and, in our view, correctly) determined that the “BSEA is charged with the responsibility to enter determinations that protect [a] [s]tudent’s procedural due process rights at Devereux,” thereby subjecting Devereux to the principle of stay put. 27 MSER 69. The Hearing Officer next found that Devereux met its burden regarding the inappropriateness of its program because of safety concerns. While the student’s behaviors had steadily increased as the pandemic progressed, peaking in July 2020, they eventually declined, albeit with continued, sporadic instances of bolting and aggression. Despite her finding that Devereux was not appropriate for the student in the long term, the Hearing Officer nevertheless found that Devereux must maintain the student’s placement in the short term with certain modifications. Notably, the Hearing Officer discredited Devereux’s documentary evidence purportedly tracking the student’s high-risk behaviors, as well as Devereux’s witnesses’ testimony in connection therewith, due to their unreliability. The Hearing Officer also reasoned that the student’s presentation, which had been unchanged since his enrollment, fell squarely within Devereux’s expertise.

Thus, the Hearing Officer held that additional modifications consistent with Devereux’s programming could, and should, be put in place in order to increase the student’s and others’ safety until another appropriate placement could be secured for him. Despite its repeated insistence over the course of many months that it could not keep the student safe, record evidence revealed that Devereux had not conferred with the student’s medical team, sought to conduct a functional behavior assessment, developed and/or updated behavior plans, or reviewed and/or implemented the student’s augmentative communication evaluation. To this end, the Hearing Officer also credited the testimony of the parents’ numerous experts. While Devereux had the capacity to assist the student, as the Hearing Officer found, it elected not to do so.

We applaud the Hearing Officer’s determination of stay put. Devereux has appealed this decision to the United States District Court for the District of Massachusetts. Stay tuned.

Parents lose reimbursement claims, but eke out small victory for COVID compensatory services

Cast, in part, against the backdrop of the COVID-19 pandemic, Nashoba Regional School District and Quinelle, BSEA #2009112, 27 MSER 84 (Reichbach, 3/3/21), illustrates the challenges that parents confront in attempting to meet their burden of proving that a school district has not provided a student with a FAPE.

In this case, the parents sought reimbursement for private services, private school tuition, and compensatory education, as well as a prospective placement, in connection with the education of their daughter, an eight-year-old with Attention-Deficit/Hyperactivity Disorder and Specific Learning Disorders with Impairments in Reading, Written Expression, and Math. They challenged both the adequacy and implementation of Nashoba’s various IEPs, among other claims.

With respect to the first IEP period at issue (2019-2020), the Hearing Officer found that testing conducted by the student’s neuropsychologist on two separate occasions was not a valid indicator of the student’s performance, due to when the evaluator administered testing. The initial round of testing occurred in early September, after school had just resumed and the student arguably had not yet recouped skills that she may have lost over the summer. An updated round of testing occurred in May 2020, two months into pandemic-related school closures, during which the student had not been receiving direct reading services. Thus, although the parents’ expert concluded that the student was not keeping pace and instead needed a small, fully integrated language-based program (in contrast to the full inclusion model proposed by Nashoba), the expert’s recommendation did not carry any weight. While the evaluations were perhaps ill-timed, we ought to recognize the logistical and often financial difficulties that parents face in securing independent evaluations even in the best of circumstances, let alone during a global pandemic. Here, the parents’ case suffered due to matters beyond their control and for which they received little, if any, leeway from the Hearing Officer. Without credible expert testimony, unfortunately, the parents were hard-pressed to meet their evidentiary burden. As such, the Hearing Officer denied the parents’ claim for reimbursement for private services provided to the student during the 2019-2020 IEP period.

In a small victory, however, the parents succeeded in demonstrating that Nashoba owed the student compensatory services for its failure to provide the student direct occupational therapy and speech services during the spring 2019 school closure period. In this regard, the Hearing Officer acknowledged the extraordinary circumstances presented by the pandemic, excusing the district for some deviations from the IEP, just not, as here, material ones.

Concerning the second IEP period at issue (2020-2021), the Hearing Officer again determined that Nashoba’s proposal was appropriate. Even though the student had indisputably regressed both academically and social-emotionally during the spring of 2019, the Hearing Officer was persuaded that increases in the student’s services, along with the addition of two new goals, provided the student with a FAPE. Curiously, the Hearing Officer referenced growth that the student had demonstrated the previous school year, prior to the onset of the pandemic, as evidence that the student could have succeeded in Nashoba’s program, had the parents not unilaterally placed her at the Carroll School. This reasoning is not only speculative, but also ignores the student’s deterioration in the intervening months and fails to apply the IEP as a snapshot at the relevant moment in time, as a factfinder is required to do.

The parents lodged a number of other discrete claims against Nashoba, one of which bears mentioning. Specifically, the parents contended that Nashoba committed a procedural violation when the student’s IEP Team failed to timely convene to review a program observation report that they had submitted. In practice, there is some ambiguity as to whether, and when, an IEP Team needs to convene to review observation reports that otherwise lack evaluative data, since federal and state law are silent on the issue. Here, the Hearing Officer determined that the IEP Team should have convened on the observation report within ten school days, borrowing from the state’s regulation governing the review of evaluation reports, 603 CMR 28.04(5)(f), and the underpinnings of the state’s observation law, MGL 71B, § 3. Despite the Hearing Officer’s finding that Nashoba had indeed failed to timely reconvene the student’s IEP Team to review the observation report, she nevertheless concluded that such violation did not amount to the denial of FAPE, particularly because it occurred during the early period of pandemic-related closures.

This case was a tough loss for the parents. An already struggling student was thrust into a pandemic, which, by all accounts, exacerbated her challenges. The parents had two options at that juncture: fight forward or sit back; they chose the former, and they fell short because of it.

Parents again suffer tough loss; reimbursement claims for private placement denied

Similar to Nashoba and Quinelle, discussed above, the BSEA dealt another blow to parents in Framingham Public Schools, BSEA #2009177, 27 MSER 126 (Putney-Yaceshyn, 3/4/21).[2]  Framingham concerned a sixteen-year-old student with Autism Spectrum Disorder (“ASD”), who, in eighth grade (2018-2019), attended an in-district, substantially separate program, before being unilaterally placed by the parents at the Darnell School (“Darnell”) for ninth (2019-2020) and tenth (2020-2021) grades.

During the course of his eighth-grade year in Framingham, both the student’s educators and parents noticed an increase in his behaviors. At home, the student aggressed toward his parents, hit himself, and struggled to get ready for school in the morning. The student’s neuropsychologist, who had evaluated him the school year prior (while he had attended school in another district) and recommended the student’s placement at a highly specialized, substantially separate program that provided thirty hours per week of 1:1 instruction driven by the principles of Applied Behavior Analysis (“ABA”), conducted an observation of the student’s Framingham program. During the observation, the student appeared agitated and dysregulated behavior. The neuropsychologist also deemed the student’s peer group inappropriate. She reiterated the previous recommendations from her evaluation report. The Hearing Officer ultimately discredited this observation, finding that it was an atypical day for the student and adopting the testimony of the student’s classroom teacher that his peers were indeed appropriate. The Hearing Officer also noted that the parents’ own delays in responding to IEP proposals, which included additional behavioral supports, hampered Framingham’s efforts to service him. Additionally, she noted that the student had undergone a number of changes upon his family’s move to Framingham (including living in “a much smaller apartment”), that his mother “was away in India for a significant amount of time,” and that the student was “going through puberty.” 27 MSER 139. Irrespective of the supposed root of the student’s challenges, however, the IDEA requires that the district provide the student with an appropriate education. We question why these facts, whatever they may have been, absolved Framingham of its obligation to meet the student where he was.

Framingham continued to propose the same in-district program for the remainder of the student’s eighth-grade year and a new in-district program at Framingham High School for his ninth-grade year. Prior to the beginning of the student’s ninth grade year, the parents notified Framingham that they were unilaterally placing the student at Darnell. Since Darnell did not resume until late September, the student attended the first few weeks of his ninth-grade year in Framingham. The Hearing Officer credited evidence that this transition was successful, providing Framingham a concrete hook on which to hang its hat for defending the appropriateness of its operative IEP.

Even though the student’s neuropsychologist concluded that the student’s program at Darnell was appropriate, based on another observation, the Hearing Officer did not find her opinion credible, since the student apparently engaged in some of the same behaviors during both the Darnell and Framingham observations. We note, however, that the Hearing Officer’s summary of the evidence does not detail the specific behaviors in which the student engaged during the Framingham observation. The Hearing Officer also reasoned that the student’s neuropsychologist had only worked with him once, years prior, when she had administered his evaluation while he was in seventh grade. She also highlighted very minor factual errors in the neuropsychologist’s reports. Finding that the parents did not meet their burden of proving that Framingham’s ninth-grade IEP was inappropriate, the Hearing Officer denied reimbursement for Darnell for that same period. Given the virtual identicalness of Framingham’s ninth and tenth grade programs, she similarly denied the parents’ reimbursement claim for tenth grade. While never reaching the issue of the appropriateness of Darnell, the Hearing Officer nevertheless took issue with the fact that, at the time of the hearing, the student was still attending school remotely, even though all other students had returned to in-person learning months prior.

As compared to her factual summary, the Hearing Officer’s analysis in Framingham is quite brief. Thus, we are left wondering about the import of the facts mentioned, yet not analyzed, in the rendering of this decision.

Errors abound; student not entitled to stay put to services resulting from clerical error

Hampshire Regional School District, BSEA #2103975, 27 MSER 35 (Nir, 1/19/21), contains an interesting discussion of stay put. In this case, both the school district and the parents made unintentional errors, the former in generating IEP amendments and the latter in responding to one of them. While the net result maintained the status quo for the student, this ruling is worth mentioning due to Hearing Officer’s considered analysis.

The parents filed a motion to enforce stay put of the student’s reading services, which they believed he had been receiving twice daily pursuant to a fully accepted IEP, as amended in September 2020. Prior to September 2020, the student had been receiving reading services only once daily. The district did not document the change to twice daily reading services on the amendment page or via Prior Written Notice (“PWN”) (Form N1), but the increase was nevertheless reflected on the IEP’s service delivery grid. Following an IEP Team meeting in November 2020 to discuss issues unrelated to the student’s reading services, the district realized what it characterized as “simply a typographical error” in the frequency of the student’s reading services, and it unilaterally reduced them back to once daily when it issued the next amendment. 27 MSER 36. Yet again, the district did not document the change via PWN. The parents unknowingly accepted the reduction in the student’s reading services, since the November 2020 IEP amendment had targeted areas other than reading, which were then the focus of the parents’ consideration.

Had the district provided PWN to the parents in November 2020, it would have ended the inquiry. Reasoning that a reduction in services is a change that triggers a district’s obligation to provide PWN, 20 U.S.C. § 1415(b)(3), (c), 34 CFR § 300.503, the Hearing Officer delved deeper into the timeline of errors to determine whether, and when, there had been “a meeting of minds” as to the frequency of the student’s reading services. 27 MSER 40. As it turns out, it never happened. The service increase in September, and the subsequent decrease in November, were not discussed at the corresponding IEP Team meetings. Thus, the Hearing Officer found that the student’s actual receipt of reading services, embodied in the IEP preceding the September amendment, constituted his stay put IEP. To hold otherwise would fly in the face of the IDEA’s stay put provision (34 CFR 300.158(a)), namely, “to preserve the status quo so as not to disturb a student’s placement unnecessarily where there is no meeting of the minds between the parties.” 27 MSER 40-41.

This case underscores the importance of vigilant oversight on both sides. For school districts, they must ensure that the IEPs that they are issuing are accurate. For parents, they must ensure that they carefully review all aspects of an IEP, even if the IEP is promulgated for another limited purpose. Here, had each party done its due diligence, it likely would have avoided considerable confusion, frustration, and expense.

Another cautionary tale; district’s failure to provide Parents’ Notice of Procedural Safeguards may excuse parents’ failure to provide notice of student’s unilateral placement

Worcester Public Schools and Ryder, BSEA #2100796, 27 MSER 41 (Reichbach, 1/21/21), provides another example of the importance of due diligence, this time in the context of providing parents with their notice of procedural safeguards. Here, the parents had filed a hearing request, seeking, in part, reimbursement for the cost of their unilateral placement of the student at the Bancroft School (“Bancroft”). Worcester moved for summary judgment, arguing that the parents had never rejected the operative IEP before it expired or provided notice of the Bancroft placement. In response, the parents contended that Worcester had never provided them with a copy of Parents’ Notice of Procedural Safeguards (“PNPS”).

As a general rule, when an IEP has been accepted fully and expires without being rejected, parents may not subsequently allege that the student was not provided with a FAPE. Like most rules, however, there are exceptions. And as here relevant, the general rule gives way when procedural defects, such as the failure to deliver a PNPS to the parents, prevent the parents from meaningfully participating in the IEP process. Since the parents, through their affidavit and the submission of documents, raised a genuine issue of material fact—the standard for assessing the viability of motions for summary judgment—as to whether Worcester’s procedural defect amounted to a denial of FAPE, the parents’ reimbursement claim survived.

District fails to comply with prior BSEA Decision; parents granted significant relief

Whitman Hanson Regional School District, BSEA #2007520-C, 27 MSER 80 (Berman, 2/24/21), considered the parents’ motion for compliance with a previous BSEA Decision, BSEA #2007520, 26 MSER 310 (Berman, 11/27/20). In that Decision, issued approximately three months prior, the Hearing Officer grappled with the appropriateness of a program for a three-year-old student with hearing loss. The parents sought placement at the Clarke School for Hearing and Speech (“Speech”); meanwhile, Whitman Hanson offered its integrated preschool program. Ultimately, the Hearing Officer deemed the district’s program inappropriate, but she nevertheless concluded that the program could be made appropriate “with the addition of a TOD [Teacher of the Deaf] qualified in listening/spoken language, to be responsible for providing the majority of the student’s direct instruction. The [TOD] shall be available in Student’s classroom throughout each school day when Student is present.” 27 MSER 80. At that time, the hearing officer also stressed the urgency of the student’s situation, noting that he was “nearing the end of a critical window to ‘train his brain’ to access sound.” Id.

In their motion for compliance, the parents argued that Whitman Hanson had still not hired a TOD for the student, in violation of the Decision. The district retorted that it had endeavored to find a full-time TOD to no avail. Instead, the district proposed a hybrid model, pursuant to which it would provide a TOD for four school days per week and that Clarke would provide a TOD for the remaining school day. The evidence, however, demonstrated that Clarke could not provide a TOD for the remaining school day. The Hearing Officer was persuaded that Whitman Hanson simply could not implement its proposal as of the date of the motion hearing or immediately thereafter. In the end, the Hearing Officer ordered the district to effectuate a placement at Clarke—the very relief that the parents had sought, but were denied, in their initial action.

[1] The parents in this case were represented by the commentator’s firm, Kotin, Crabtree & Strong, LLP.
[2] The parents in this case were represented by the commentator’s firm, Kotin, Crabtree & Strong, LLP.