Introduction

The third quarter of 2021 brought a total of four BSEA decisions and eight rulings. In addition, on the last day of the quarter (September 30, 2021), the BSEA issued an administrative directive stating that in-person hearings are now available again. The information, available at https://www.mass.gov/orgs/bureau-of-special-education-appeals, specifies that in-person hearings are limited to one per day, with a limit of six people in the room at any given time. Mask-wearing is at the discretion of the hearing officer. Virtual hearings remain available. “Hybrid” hearings, in which portions are conducted by Zoom and portions in person, represent another option.

This Commentary will discuss all four of the decisions and seven of the rulings issued during the third quarter. The decisions are an eclectic lot. School districts (together with, in one instance, a private school) prevailed in each.

·     One decision (Sandwich Public Schools and the Amego School, BSEA #2109444, 27 MSER 415), concerns the ability to administer medical marijuana in school, which is an interesting issue that is likely to recur in other cases.

·     The other decisions present idiosyncratic fact patterns. Two involve siblings. In Acton-Boxborough Regional School District (BSEA #2101061, 27 MSER 362) the parent alleged that the district had discriminated against her and against the student in violation of the Individuals with Disabilities Education Act (“IDEA”) and Section 504 of the Rehabilitation Act (“Section 504”) and had failed to implement an accepted individualized education program (“IEP”). In Acton-Boxborough Regional School District (BSEA #2103253, 27 MSER 393), the same parent asserted that the district had committed procedural violations amounting to denial of FAPE in the case of an older sibling. She lost both cases, decided by different hearing officers.

·     The remaining decision, Hamilton-Wenham Regional School District (BSEA #2104633, 27 MSER 338), concerns a student who had attended various schools and had been out of school at times. The parents failed to obtain reimbursement for unilateral placements in two unapproved private schools that the student had attended over two successive years.

The parents and districts were represented by counsel in both Acton-Boxborough cases and in Hamilton-Wenham. The Sandwich decision, which was issued on the documents, does not state whether the parties were represented.

The rulings may be divided into three groups: dispositive motions, compliance motions, and motions for joinder.

·     The rulings on the dispositive motions encompass a grant of summary judgment to the district in a graduation dispute (Harvard Public Schools, BSEA #2108881, 27 MSER 386); denial of a motion to dismiss a claim involving retention (Boston Public Schools, BSEA #2112292, 27 MSER 327); and a grant in part and denial in part of a motion by the district of residence to dismiss claims involving unilateral placement of a METCO student (Brookline Public Schools and Boston Public Schools, BSEA #2200340, 27 MSER 334).

·     The compliance motions involved a district’s obligation to reimburse the parents promptly following a decision in their favor in a unilateral placement case, despite the pendency of the district’s appeal (Amesbury Public Schools, BSEA #2103885-C, 27 MSER 422), and the obligations of both parties following a hearing officer’s order granting substituted consent for a re-evaluation (Hamilton-Wenham Regional School District, BSEA # 2104095-C, 27 MSER 407).

·     The joinder motions involved a private special education school in a case for compensatory services (Arlington Public Schools, BSEA #2111926, 27 MSER 331) and the Massachusetts Department of Mental Health (“DMH”) in a case where the parents sought a residential educational placement (Westfield Public Schools, BSEA #2200773, 27 MSER 423).

Cannabis conundrum: may district and/or private school be ordered to administer medical marijuana necessary for a student to participate in his education?

The parties agreed on a compelling set of facts in Sandwich Public Schools and the Amego School, BSEA #2109444, 27 MSER 415 (Catherine Putney-Yaceshyn, 9/13/21). The fifteen-year-old student suffered from “Severe/Non-Conversational Autism, Crohn’s Disease, intellectual disability, anxiety, apparent migraine issues . . . and recurring PANDAS.” Id. at 415. He struggled with chronic pain. Despite years of intensive medical treatment by numerous specialists, his symptoms had prevented him from attending school for a period of approximately four years, during which he received all of his services at home. At his providers’ suggestion, he then tried medical marijuana, which proved highly effective. Not only did his gastrointestinal issues improve but he made significant progress in many other areas, including behavioral regulation, language use, and willingness to participate in school. As of the hearing date, he had been attending the Amego School (“Amego”), an approved private special education program, pursuant to IEPs for nearly two years and had made progress there. The student’s most recent IEP called for residential placement at Amego, which all parties agreed was appropriate.

The disagreement concerned the student’s need to receive medical marijuana capsules three time daily. His parents had rejected his IEPs in part, based on their failure to provide for administration of marijuana at Amego. The parents argued that administration of marijuana was required in order for the student to receive a free appropriate public education (“FAPE”) under IDEA and Section 504, and that it was required as a reasonable accommodation under Section 504 to allow the student to participate in his education. The Sandwich Public Schools (“Sandwich”) and Amego argued that, although the student was a registered patient in the Massachusetts Medical Use of Marijuana Program, the administration of medical marijuana at Amego would violate state and federal law.

The hearing officer, after carefully considering what she characterized as “a significant conundrum,” 27 MSER at 417, agreed with Sandwich and Amego. She found that, although “at first blush, it would seem to be apparent that the provision of medical marijuana in Student’s school setting would be a reasonable accommodation,” 27 MSER at 418, the determination “must be filtered through the lens of laws surrounding the use of medical marijuana.” Id. She concluded that neither Massachusetts nor federal law permits such use in schools. Although Massachusetts has legalized the use of marijuana in many circumstances, it prohibits the use of marijuana in school buildings serving students from preschool through grade 12 or on school buses. M.G.L. c. 95G, § 2(d)(3); 935 CMR 501.850(2)(d).[1] And under federal law, the possession or use of marijuana for any reason remains a crime. See 21 USC §§ 801-904. Because neither federal nor Massachusetts law permitted the accommodation that the parents sought, the hearing officer found that the accommodation could not be considered reasonable under Section 504. “Similarly,” she stated, “I am unable to order Sandwich to include the use of medical marijuana in Student’s IEP, as neither Sandwich nor Amego could legally implement the IEP.” 27 MSER at 420-21.

The hearing officer expressed sympathy for the parents, noting that “[t]his result does not fulfill the intent of the IDEA, M.G.L. ch. 71B or Section 504,” 27 MSER at 421, and that it “leaves Parents with an impossible choice between sending their son to a school that can provide all of the services he requires to receive a FAPE, and being able to continue his treatment with the only medication that has been effective in managing his significant health issue.” Id. She suggested that the parties “collaborate and attempt to come up with any lawful ‘out of the box’ solution to this conundrum,” including “whether it would be feasible to contract with a visiting nurse, personal care attendant or home health aide, as allowed by [935 CMR 501.002], to administer medical marijuana to Student” off Amego’s premises. Id. She also referred the case to legal counsel at the Massachusetts Cannabis Control Commission and the Massachusetts Department of Elementary and Secondary Education (“DESE”) to consider the possible need for policy guidance or regulatory changes. Of course, none of these steps would circumvent the problem posed by federal law, which, as the parties pointed out, could conceivably result in federal prosecution or loss of federal funding.

It is heartening to see the compassion with which the hearing officer, Sandwich, and Amego appear to have approached the parents’ dilemma, and unfortunate that a solution could not immediately be found. We hope that state and federal statutory and regulatory changes will, in the future, provide a sensible solution for families such as this one.

Acton-Boxborough I: district held not to have discriminated against parent or student, or failed to implement accepted IEP

As noted above, Acton-Boxborough Regional School District, BSEA #2101061, 27 MSER 362 (Amy Reichbach, 8/18/21) (“Acton-Boxborough I”), is one of two decisions issued this quarter involving the same family. The student in this case was a nine-year-old whose diagnoses included anxiety disorder, social pragmatic communication disorder, and specific learning disabilities. His pediatrician had diagnosed him with post-traumatic stress disorder (“PTSD”). The student’s 2019-2020 IEP provided for a full inclusion program at the district’s Gates Elementary School. At the parent’s request, he was subsequently transferred first to the Merriam and then to the Conant Elementary School.

During December 2019 and January 2020, the student experienced several episodes of behavioral dysregulation at the Merriam School, including one on January 9, 2020 that ended with involvement of the school resource officer (“SRO”) and transportation of the student by ambulance to a hospital for a mental health evaluation to determine whether involuntary commitment was necessary. He continued to experience difficulty participating in class after his transfer to the Conant School. A staff member was added to his classroom there, which the parent interpreted as provision of a 1:1 aide (a service not specified in the student’s IEP).

The parent asserted that the district had discriminated against her and against the student on the basis of race, ethnicity, color, disability, and English language learner status, in violation of IDEA and Section 504. She also alleged that the district had denied the student FAPE by failing to implement an accepted IEP. The case had a lengthy history at the BSEA. By the time of the hearing, the issues had been narrowed to focus on four alleged actions by the district: removal of the student from general education classes without the parent’s consent; addition of a 1:1 aide to the student’s program without the parent’s consent; involvement of the SRO in the January 9, 2020 incident; and imposition of inappropriate consequences for behaviors that constituted manifestations of the student’s disability.

The hearing officer examined each of these allegations in turn. As to each, she found no discrimination and no denial of FAPE.

·     Absence from general education classes. The hearing officer found that, in every instance but one, the student had run out of the class of his own volition, often to avoid nonpreferred tasks. One can imagine that a district could be held responsible if it had cavalierly allowed frequent elopement to occur without taking steps to address it. In this case, however, the hearing officer noted that the district had worked diligently to decrease the amount of time the student spent outside the classroom, consistent with his IEP and behavioral plan; to keep him safe when he was out of the classroom; and to make up any work he had missed. Thus, the hearing officer concluded that there had been no “removal” from the classroom and no failure to implement the IEP.

In one instance, the student had been told that he could not go to the general education classroom until he picked up puzzle pieces that he had strewn around the special education classroom in an episode of dysregulation. The hearing officer concluded that, even if this were construed as removal from the general education setting, it did not constitute bad faith, gross misjudgment, or deviation from accepted professional standards, and thus did not amount to discrimination under Section 504. Moreover, because the episode was brief and the student made up the general education work later the same day, it did not constitute a material failure to implement his IEP under IDEA.

·     Addition of a 1:1 aide. The parent alleged that, on the student’s transfer to Conant, the district had added a 1:1 aide to his program without her consent. The hearing officer found that an additional special education assistant had been added to the student’s class shortly after he began there. She stated, however, that in light of the information known to the district about the student’s behavioral issues (including his frequent elopement), it was reasonable to add staff to his classroom. Despite the fact that “the assistant did focus much of his attention on [the student],” 27 MSER 381, and despite conflicting testimony from administrators about the assistant’s role, the hearing officer concluded that the assistant was not hired as a 1:1 aide for the student. She explained that, when the assistant left the classroom to follow the student when he eloped, the assistant “was not providing special education services,” but rather was performing a “supervisory duty that would be mandated” for any staff member in order to ensure the student’s safety. She also pointed out that the assistant continued to work with the class during remote learning, when the student did not attend at all. The hearing officer concluded that a 1:1 aide was not added and that there was thus no violation of Section 504 or IDEA.

On the reported evidence, this appears to be a closer question than some of the others in the case, and the distinctions appear to border on the semantic. One wonders what more the parent would need to have shown in order to prove that the aide was functioning as a 1:1, and whether the decision gives districts carte blanche to provide 1:1 aides as long as they do not use that terminology.

·     SRO involvement. The hearing officer found that the SRO’s involvement in the January 9, 2020 incident, which ended with the student’s being transported to the hospital for evaluation for involuntary commitment, did not constitute discrimination under Section 504. To do so, it would have had to amount to bad faith or gross misjudgment. The hearing officer concluded, however, that the district staff acted reasonably in involving the SRO, as they only sought his assistance after the student had become volatile and aggressive, endangering himself and others, and after less restrictive measures had not worked. Although a district policy regarding restraint required the use of staff with “Safety Care” training, which the SRO did not have, his restraint of the student fell within a policy exception for emergency situations.

The parent argued, based on testimony from the student’s pediatrician, that restraint by the SRO triggered PTSD in the student. The hearing officer found that the pediatrician was not credible, because he based all of his opinions on information from the parent (he did not speak with the district or even with the student, nor did he review the student’s IEP or behavior support plan); his letters to the district about the student were inconsistent; the PTSD diagnosis was not supported by the medical record (including the doctor’s own files); and he failed to pursue communication with school officials, accepting the parent’s refusal to sign a release without trying to convince her otherwise. It may well be that the pediatrician was not credible for the first three reasons, and in any event the impact of the restraint would only be relevant if the district knew about it before the incident, which it did not, as the pediatrician diagnosed PTSD only afterward. It seems unwarranted, however, to place on a medical doctor the responsibility for convincing a parent (who was represented by counsel at the time) to sign a release allowing communication with the district, and to hold his omission to do so as a strike against his credibility.

·     Consequences for misbehavior. The parent argued that the district had imposed inappropriate consequences for manifestations of the student’s disability by removing him from the classroom, denying him access to the bathroom, requiring him to pick up puzzle pieces he had thrown around the classroom, and restraining him and transporting him to the hospital over her objection as part of the January 9, 2020 incident. (Note that traditional manifestation determination analysis under 20 USC § 1415(k) does not apply, as the student was not suspended from school for more than ten days.) The hearing officer found no evidence that the student had been removed from the classroom or denied access to toilet facilities. She found that the use of restraint was reasonable on the grounds discussed above, emphasizing that the district had resorted to restraint only after less restrictive means had failed. Transport to the hospital was also reasonable because the staff were concerned that the student “would again dysregulate significantly,” creating an unsafe situation for parent and student if they had returned home. 27 MSER at 384. In addition, the police and paramedics agreed that transport to the hospital was appropriate, and the student met hospital criteria for admission when he arrived. As for pickup of the puzzle pieces, the hearing officer concluded that being asked to put away five or six puzzle pieces as a symbolic “‘small repair,’” even though it occurred more than a week after the incident due to the December break, was not an inappropriate consequence. Id.

Acton-Boxborough II: parent proves certain procedural violations, but no denial of FAPE

In Acton-Boxborough Regional School District, BSEA #2103253, 27 MSER 393 (Rosa Figueroa, 8/27/21) (“Acton-Boxborough II”), a different hearing officer considered claims involving the older brother of the student in Acton-Boxborough I. In this case, too, the parent failed to obtain any of the relief she sought.

The parent argued that the district had committed procedural violations under IDEA and Section 504 by failing to convene the student’s Team before his 2019-2020 IEP expired, failing to evaluate him in a timely manner, and failing to convene a Team meeting when she requested one. She argued that the district had thereby impeded the student’s right to FAPE, significantly impeded her right to participate in the decisionmaking process, and/or deprived the student of educational benefits. See 20 USC § 1415(f)(3)(E)(ii). She also asserted that the district had committed a substantive deprivation of FAPE by failing to address trauma that the student experienced after the incident involving his parent and brother on January 9, 2020 (described above). The hearing officer stated that, because the parent’s 504 claims were not distinct from her IDEA claims and because IDEA affords a higher level of protection, she would analyze all claims under IDEA. She found that, although certain procedural violations had occurred, none constituted deprivation of FAPE, and no substantive violation had occurred.

·     Failure to conduct a timely annual review. The parent argued that delay of the student’s annual review meeting by five weeks deprived him of FAPE by depriving him of participation in general education and requiring him to receive services he no longer needed pursuant to his stay-put IEP. The hearing officer found that the delay constituted a procedural violation but did not deprive the student of FAPE. She pointed out that the IEP proffered in February 2020, to which the parent never responded, proposed less restrictive programming and that “it was only Parent’s failure to accept the 2020 IEP that resulted in reversion to Student’s more restrictive stay-put IEP.” 27 MSER at 403. The hearing officer did not, however, assess the impact of the five-week delay during which no new IEP was offered.[2]

·     Failure to conduct a timely re-evaluation. The district proposed a re-evaluation in December 2019, to which the parent consented in February 2020. The evaluation was not completed until February 2021. The hearing officer acknowledged that this constituted a procedural violation but found that “the delay was influenced by multiple mitigating circumstances, including parent’s actions/inaction.” 27 MSER at 403. She pointed out that the parent’s delay in giving her consent meant that the re-evaluation needed to take place during the difficult conditions created by the COVID-19 pandemic (something that the parent could hardly have foreseen at the time, however); that the student did not attend school within the district between March and December 2020; that the parent “ceased all communication with [the district] after March 9, 2020 and did not even inform [the district] that she had moved her family out of state in the fall of 2020,” id.; and that the parent ignored the district’s attempts to communicate with her. Based on this evidence, the hearing officer concluded that “Parent’s obstruction and lack of cooperation with the District impeded the District’s ability to fulfill its obligations pursuant to the IDEA and MGL c.71B.”Id.

·     Failure to convene a Team meeting in response to parent’s request. The hearing officer found that the parent had not in fact requested a Team meeting in March 2020. She stated that the e-mail in question did not specifically request a Team meeting (though it did request a meeting) and that it was not “Student specific” (though it did request a meeting both for this student and for his brother). 27 MSER at 402. The hearing officer might also have pointed to the fact that, though it may often be the wiser course for a district to agree to a parental request, no statute or regulation requires a district to convene a Team meeting based solely because a parent asks for one.

·     Failure to address trauma. The parent claimed that the district had failed to address the student’s trauma and PTSD related to the incident involving herself and his sibling. She relied on notes and letters by the same pediatrician who had testified in Acton-Boxborough I. The parent did not call the pediatrician as a witness in this case, nor did the student’s therapist testify. The hearing officer saw this as a glaring omission: “If Student was so traumatized that he required therapeutic intervention, contributions by his therapist via testimony or documentary evidence would have been central to support Parent’s claim. The fact that Parent chose to rely on [the pediatrician’s] notes and her own testimony, and offered no other evidence regarding therapeutic interventions, render her allegations of trauma suspect and compromises her credibility.” 27 MSER at 405. The hearing officer further found the pediatrician’s “letters, diagnosis of PTSD and trauma questionable, and his recommendations unreliable and lacking in credibility” because his recommendations were inconsistent; they were based largely on parental report and/or drafted at the request of the parent or her attorney; and the parent had offered no evidence of the doctor’s qualifications to make educational recommendations. Id.

The hearing officer concluded by stating that the case was “unique in that it appears to present a fact pattern in which actions are driven by circumstances extraneous to the actual provision of FAPE to Student.” 27 MSER at 405. She criticized the parent’s handling of the BSEA matter, including “the level of overlitigation.” Id. She stated that the parties “could have submitted a joint stipulation addressing the procedural violations and seeking dismissal of the case along with a declaration that they had exhausted administrative remedies at the BSEA.” Id. n.20. Even though the parties agreed that procedural violations had occurred, however, it is difficult to imagine that they could have agreed on how those violations should be addressed, given the contentious nature of the case.

Parents fail to obtain reimbursement for either of two unapproved private schools; district’s proposed placement at therapeutic day school upheld

The student in Hamilton-Wenham Regional School District, BSEA #2104633, 27 MSER 338 (Alina Kantor Nir, 8/16/21), was a sixteen-year-old tenth-grader with expressive language disorder, ADHD, and PTSD. He had last attended the district’s schools in fourth grade. For four or more years (from sometime in fourth grade until sometime in eighth), he was either homeschooled or briefly attended unilateral placements. In eighth grade (2018-2019), he attended an extended evaluation at Dearborn Academy’s STEP program, following which he was placed at Pathways Academy, a private, DESE-approved therapeutic day program located on the grounds of McLean Hospital. Neither the student nor the parents liked Pathways, and the parents took the position that the student did not require a therapeutic placement. They placed him unilaterally at the unapproved Chapel Hill-Chauncy Hall School (“CHCH”) for ninth grade (2019-2020). He experienced bullying there and did not return for tenth grade (2020-2021). Instead, his parents placed him unilaterally at the unapproved Austin Prep School, which recommended that he not return for eleventh grade. The district continued to propose Pathways as the student’s placement throughout this time.

The hearing officer concluded that the parents were not entitled to reimbursement for either of their unilateral placements. She stated that the parents had failed to prove that the student did not require therapeutic services, social-pragmatic instruction and/or a therapeutic placement. “To the contrary,” she opined, “the record demonstrates abundantly that Student’s needs in the social and emotional domain must be addressed in order for him to benefit from any educational program” and that “the most glaring evidence to support such need is Student’s repeated school failures,” which were “evident throughout Student’s tenure at every school placement, including those selected by Parents and endorsed by their experts.” 27 MSER at 354. She found that the district’s IEPs proposing the Pathways placement were reasonably calculated to offer the student a FAPE. This conclusion, of course, was fatal to the parents’ reimbursement claims.

The decision contains many observations that may be helpful to parents and their attorneys as they navigate relationships with school districts and prepare for hearings. Among the takeaways:

·     Experts need more than an opinion in order to be found credible. The parents relied mainly on the testimony of the student’s psychiatrist, who opined that the student did not require social-pragmatic coaching, life skills instruction, or a therapeutic placement. The hearing officer found that the psychiatrist “offered no evaluative basis” for his opinion and oversimplified the student’s needs. 27 MSER at 355. She pointed out that the psychiatrist “is not an educator, has never worked with or consulted meaningfully with any school staff member, has not administered any formal testing instruments to Student, has not observed Student in any school setting, and, as a result, has never observed the behaviors reported by Dearborn and Pathways. Nor has he observed what the implementation of said supports and services looks like at Pathways.” Id.(footnote omitted). Instead, the psychiatrist had “relied solely on Parents’ reports; he has neither sought nor considered input from any school setting.” Id. (footnote omitted). The hearing officer concluded that, “[f]or the purpose of educational programming, this renders his findings and recommendations unpersuasive. As such, I place limited weight on his educational recommendations.” Id. (footnote omitted). The lesson here is clear: before testifying, experts need to have conducted an evaluation, communicated with school staff, considered their input, and conducted observations.

·     Parents need to consent to evaluations and participate in Team meetings even when the student attends a unilateral placement. The parents complained that the tenth-grade IEP failed to reflect accurate information about the student, yet they had refused to allow the district to re-evaluate the student and had declined to participate in the IEP’s development. The hearing officer stated the logical consequence of this course of conduct: “By refusing to participate in the development of the Tenth Grade IEP or allowing the District to secure updated Student information through a reassessment, Parents are precluded from then asserting that the final product does not reflect current information about Student or their input and is therefore inappropriate.” 27 MSER at 360. Even when a student is unilaterally placed, parents should remain open, consent to evaluations, share information, and participate in Team meetings. Otherwise, an IEP’s appropriateness will be assessed in light of the information available to the district, which in this case consisted of Dearborn and Pathways evidence showing that the student required a therapeutic program such as Pathways.

·     The student’s opposition to a program may be seen as irrelevant; parents’ opposition may be seen as “poisoning the well.” Pathways staff testified that the student would have made more progress in that program “but for the fact that he did not ‘want to be there.’” 27 MSER at 359. The hearing officer observed that “the fact that Student did not want to attend a therapeutic placement has little relevance to my assessment of whether the District’s IEP offered Student a FAPE.” Id. (footnote omitted). Although one could maintain that an adolescent’s attitude toward a program is relevant to his ability to make progress there, the hearing officer in this case clearly was not accepting that argument.

As for the parents’ attitude, the hearing officer credited Pathways staff’s testimony “that Parents’ lack of support for the program ‘trickled down’ to Student and impeded his participation and progress.” 27 MSER at 359. She observed that “the only potential obstacle to [the district’s] proposal is that the Pathways placement has already been ‘poisoned’ in Student’s mind,” 27 MSER at 360 n.128, but she “decline[d] to find that Pathways is inappropriate by virtue of Parent’s hostility to the placement.” Id. at 361 n.128. She went so far as to observe that “Parents have demonstrated through their actions that no placement proposed by [the district] would satisfy them.” Id. Parents should be counseled to “shield[] [students] from their own distrust and disenchantment” with any proposed program, id. at 359, which the parents failed to do in this case. Otherwise, the parents may end up facing blame for the student’s lack of success in the placement.

·     An inaccurate disability category will not automatically render an IEP inappropriate. The hearing officer stated that the parents and psychiatrist “primarily disagree with the IEPs because the IEPs do not identify PTSD secondary to bullying as Student’s primary diagnosis,” and instead specified communication and health impairments. 27 MSER at 356 (footnote omitted). She explained, however, that “[t]he fact that Parents believe that Student was mislabeled does not per se mean that he was denied a FAPE. Even if Parents could prove that Student’s classification in the IEPs is improper, they still would need to establish that the proposed IEPs denied Student a FAPE on the basis of his unique needs, regardless of the disability label given to those needs.” Id. (footnote omitted). Although “there are distinct instances when a specific diagnosis on an IEP is crucial, such [was] not the case here,” id. at 357, where “no changes to strategies, interventions, goals or objectives are necessary due to Student’s PTSD label.” Id.(footnote omitted). Before attempting to rely on the inaccuracy of the disability category to show that an IEP is inappropriate, parents and their advisors need to consider the other factors that the hearing officer articulated here.

·     To succeed in a case seeking reimbursement for a unilateral placement, the student needs to succeed there. Having found that the district’s IEPs offered FAPE, the hearing officer did not need to consider the appropriateness of CHCH or Austin Prep. She noted, however, that she would have been unable to find either program appropriate. The parents had made no “showing that there was some design in place for meeting the unique needs of the child” at either school. 27 MSER at 361 (footnote omitted). No staff from either school testified at hearing, and “Parents failed to present detailed evidence regarding the supports and services available to Student at each program and how said supports were responsive to Student’s educational needs.” 27 MSER at 361. Instead, the hearing officer stated, “the very limited evidence which was offered by Parents suggests that neither program could meet Student’s needs; Student’s inability to remain at either placement for longer than one school year highlights a fundamental deficiency in programming and an unresponsiveness to Student’s unique special education needs.” Id. Parents and their advisors need to think carefully before bringing a unilateral placement case to make sure that they will be able to demonstrate the ways in which that placement met the student’s needs. If they cannot, the result is likely to be similar to the one stated here.

Summary judgment granted for district in dispute over continued eligibility of student who met graduation requirements

Graduation-related eligibility disputes recur with some regularity at the BSEA. In the latest such case, Harvard Public Schools, BSEA #2108881, 27 MSER 386 (Alina Kantor Nir, 6/30/21), the hearing officer granted summary judgment for the district, finding that the student had met graduation requirements and that the parents were precluded by a settlement agreement from challenging the student’s last IEP.

The student was a nineteen-year-old with autism, an intellectual disability, and ADHD, who had attended the Riverview School’s GROW program for the 2020-2021 school year pursuant to a settlement agreement. Because he had passed MCAS and met local graduation requirements, the district sought to graduate him in June 2021, thus terminating his eligibility for special education. Following such authorities as Doe v. Marlborough Pub. Sch., Civil Action No. 09-11118-WGY, 2010 U.S. Dist. LEXIS 66482 (D. Mass. June 30, 2010), the hearing officer held that graduation was permissible unless the parents could prove that the district had failed to provide the student with FAPE during the 2020-2021 school year. (The settlement agreement precluded them from challenging earlier IEPs.)

The hearing officer found that there was no disputed issue of material fact regarding the student’s progress during 2020-2021. As she stated, “Parents/Guardians neither assert that Student did not receive appropriate transitional services nor that Student’s IEP was not reasonably calculated to provide him with educational benefit,” nor did they “assert that Student’s transition services were not properly implemented [or] that his goals and objectives were not properly ambitious.” 27 MSER at 390 (footnotes omitted). “To the contrary,” she stated, “Parents/Guardians endorsed the program at Riverview as appropriate for Student’s needs, and it was their program of choice for the 2020-2021 school year. In addition, Parents now seek its continuation for 2021-2022.” Id. (record citations omitted).

The parents attempted to argue that a genuine issue of fact existed as to whether the student had made sufficient progress in one year at Riverview, in light of his “‘ongoing transition needs.’” 27 MSER at 390 (record citation omitted). The hearing officer rejected this argument, stating that “Parents/Guardians have not suggested that Student should have made greater progress than he did or that his progress was not commensurate with his abilities,” or “suggest[ed] what services, in addition to those he has already been provided, Student requires.” Id. at 391(footnotes omitted). Moreover, she stated, both Riverview and the parents’ expert neuropsychologist had opined that the student had made effective progress at Riverview during 2020-2021.

The hearing officer went on to explain that, although the transition process is “‘results-oriented,’” no particular result is guaranteed, and “Student need not be provided services and interventions until his potential is maximized.” 27 MSER at 391 (footnote omitted). “Hence,” she stated, the district was

not obligated to provide Student with special education services until he meets all his transition goals; nor must Harvard continue eligibility for the duration that Student’s needs persist. Instead, Harvard’s FAPE obligation to Student lasts only until Student graduates. Harvard need not educate Student until he reaches a level of independence that Parents/Guardians find appropriate, especially when Student presents with “life-long needs” and will continue to require life-long supports from [an adult services agency].

Id. (footnotes and record citation omitted).

We note that the statement that the district’s FAPE obligation “lasts only until Student graduates” may appear somewhat tautological in a graduation dispute. It is worth remembering that, although the fulfillment of state and district standards such as passing MCAS and completing courses “is necessary for a student to graduate, it may not always be sufficient,” as, for example, when the parents assert that the student has not made sufficient progress on his or her IEP goals and objectives. Quabbin Regional School District, BSEA # 05-3115, # 05-4356, 11 MSER 146, 153 (William Crane, 8/16/05). See Marlborough, 2010 U.S. Dist. LEXIS at *17 (“notwithstanding that the Student met all requirements for graduation, the Court must nevertheless evaluate whether Marlborough deprived him of FAPE under IDEA by graduating him”) (footnote omitted). In this case, however, as discussed above, the hearing officer found no genuine dispute of material fact regarding the provision of FAPE.

Ordinarily, parents can obtain services past the student’s scheduled graduation date by rejecting or partially rejecting the last IEP, asserting the student’s stay-put right, and following the appeal process. See Marlborough, 2010 U.S. Dist. LEXIS at *27-*31. In this case, however, the settlement agreement provided that, if the Team determined in March 2021 (as it did) that the Student would meet graduation criteria by the end of the 2020-2021 school year, his stay-put status would be “as a graduated student no longer eligible for special education services.” 27 MSER at 387. Thus, the only way for his services to continue past the end of the 2020-2021 school year would have been for the parents to provide them at their own expense.

The hearing officer concluded her discussion by saying that her ruling was “constrained by the law, the terms of the Settlement Agreement, and the unique circumstances which resulted in Student’s meeting his graduation requirements.” 27 MSER at 393. Future cases not involving settlement agreements can be expected to provide additional guidance.

BSEA retains jurisdiction over retention-based FAPE claim

The district in Boston Public Schools, BSEA #2112292, 27 MSER 327 (Alina Kantor Nir, 8/10/21), moved to dismiss one of the parent’s claims for lack of jurisdiction, asserting that because the claim involved retention it failed to raise an issue cognizable under the special education laws. The hearing officer properly denied the motion.

The case involved a K1 student for whom, the parent contended, Boston had not proposed FAPE during the 2020-2021 school year. The parent had refused the district’s 2020-2021 proposal of placement in an “inclusion” (co-taught) classroom, and the student had instead attended a general education classroom in his community school. For 2021-2022, the district proposed to promote the student to K2 and to move him to an “inclusion” classroom in a different school. The parent refused the placement and contested the proposed promotion. She argued that, due to his failure to receive appropriate services in K1, the student lacked the skills necessary to succeed in K2, which thereby rendered the proposed K2 classroom inappropriate as well. She sought retention in his K1 general education classroom.

The hearing officer began by recognizing that IDEA does not address retention or promotion, and that “an issue solely concerning a decision to promote or retain a student is a general education decision” over which the BSEA would have no jurisdiction. 27 MSER at 329. Following OSEP guidance (Letter to Anonymous, 35 IDELR 35 (2000)) and prior BSEA rulings such as Laura and Boston Public Schools, BSEA #03-1154, 9 MSER 85 (William Crane, 4/30/03), and Wachusett Public School District and Miles, BSEA #03-5677, 9 MSER 172 (Joan Beron, 8/20/03), however, the hearing officer explained that the retention or promotion of a student with a disability falls within the BSEA’s jurisdiction if the retention or promotion dispute “implicates a dispute about the identification, evaluation, educational placement, or denial of FAPE.” 27 MSER at 330. In that event, she stated, “retention or promotion may be within the scope of the relief ordered by a hearing officer.” Id.

Here, the hearing officer had no trouble concluding that “Parent’s FAPE claim is directly linked to her argument for retention.” 27 MSER at 330. She therefore denied the district’s motion and allowed the case to proceed.

When does the district of residence become potentially responsible for the unilateral placement of a program school student?

In Brookline Public Schools and Boston Public Schools, BSEA #2200340, 27 MSER 334 (Marguerite Mitchell, 8/16/21), the hearing officer considered the often-vexing question as to when a district of residence becomes responsible for a resident student who has been attending a program school. The case concerned a METCO student who lived in Boston and had attended public school in Brookline from kindergarten through fourth grade. At the end of his fourth-grade year (June 2020), his parents notified Brookline that they intended to place the student unilaterally at the Carroll School for the summer. In August 2020, they notified Brookline of their intent to place him unilaterally at Carroll for fifth grade. Brookline did not notify Boston of the unilateral placement until December 2020. Brookline invited Boston to an annual review meeting held on June 10, 2021, but Boston declined to attend. Following that meeting, Brookline notified Boston that the Team had determined that the student required programming that Brookline did not have and was not willing to create. Brookline stated its intent to reconvene to discuss the student’s placement, but no meeting had occurred as of the date of the ruling.

The parents filed a hearing request against both districts. Boston then moved to dismiss for failure to state a claim, asserting that because a placement meeting pursuant to 603 CMR 28.10(6)(a) had not yet occurred and the student was not enrolled in Boston, the hearing request against Boston was premature.

The hearing officer granted the motion in part and denied it in part without prejudice. She dismissed all claims before June 10, 2021 with prejudice but allowed claims from and after that date to proceed. Following Neighborhood House Charter School, BSEA No. 1909934, 25 MSER 131 (Sara Berman, 6/14/19), she found that Boston bore no responsibility for claims predating June 10, 2021 because the Team did not “determine[] that the student may need an out-of-district placement,” 603 CMR 28.10(6)(a), until that date. As she pointed out, the parents’ unilateral placement of the student “did not trigger any programmatic or financial obligation on the part of Boston under the special education provisions applicable to METCO students [603 CMR 28.10(6)(a)].” 27 MSER at 337. Instead, “[t]hose regulations are only triggered when the Team makes the decision that an out of district placement may be required,” id., following which the program school must convene a placement meeting to which the district of residence is invited. 603 CMR 28.10(6)(a)(1).

The hearing officer observed that her conclusion was bolstered by the fact that the student did not enroll in Boston after the unilateral placement. 27 MSER at 337. When parents of program school students (i.e., METCO students and those attending charter, vocational, school choice, and Commonwealth virtual schools) make unilateral placements, they are often confused as to whether (and if so, when) to enroll the student in the district of residence. Here, remaining on Brookline’s rolls may have helped the parents’ case, as the Brookline Team was presumably more familiar with the student’s needs, and thus perhaps more likely to conclude that the student might require out-of-district placement, than a Boston Team unfamiliar with the student might have been.

As for the claims from June 10, 2021 forward, the hearing officer concluded that factual development was required. She described the hearing request as alleging facts that, viewed in the light most favorable to the parents, created plausible inferences that Boston bore at least some responsibility for the fact that a placement meeting had not yet occurred. If Boston proved to be responsible for the failure to hold a placement meeting, then as a matter of equity Boston should be unable to invoke the lack of such a meeting to deny responsibility for the unilateral placement.

BSEA reimbursement order triggers immediate obligation to pay

The parents were forced to bring a motion for compliance in Amesbury Public Schools, BSEA #2103885-C, 27 MSER 422 (Amy Reichbach, 9/13/21), when the district failed to comply with a hearing officer’s order requiring reimbursement of the costs of the parents’ unilateral placement. As of the date of the ruling, more than 90 days had elapsed since the hearing officer issued her decision and order. The district admitted that it had failed to comply with the order, but argued that it should not be required to pay because it had appealed the decision.

The hearing officer concluded that the district had not complied with her decision and order. She found that, although the case was on appeal to the federal district court, “nothing about that appeal deprives the BSEA of jurisdiction over the [compliance] motion, or automatically operates as a stay,” nor had the district offered any “particular facts that justify a departure from a school district’s obligation to comply immediately with a final BSEA decision.” 27 MSER at 423. She therefore entered another order, directing the district to reimburse the parents within 30 days of the ruling.

Clearly, this was the right result. The district should not have taken it on itself to decide that it did not need to pay. If the district had wanted a stay, it could have sought one in the pending court proceedings. It must have been frustrating to the parents, however, to see that the district was able in effect to obtain a four-month stay, simply by disobeying the BSEA’s original order and compelling the parents to bring a compliance proceeding.

Hearing officer sorts out evaluation obligations on dueling compliance motions

Several weeks after the Hamilton-Wenham decision discussed above, both parties filed motions for sanctions, which the hearing officer interpreted as motions for compliance. Hamilton-Wenham Regional School District, BSEA # 2104095-C, 27 MSER 407 (Alina Kantor Nir, 9/1/21). The motions concerned a re-evaluation that the district was obliged to perform, in accordance with the hearing officer’s grant of substitute consent in a June 22, 2021 decision, 27 MSER 287, and an independent psychoeducational evaluation that the parents had obtained in July 2021.

The parents argued that the district had failed to comply with the June 2021 decision. The district argued that the parents had acted in bad faith by obtaining an independent evaluation before the district had performed its own. The district requested an order (a) requiring the parents immediately to produce the independent evaluation report and related documents (this apparently became moot, as the parents represented that they had produced these records to the district several days before the ruling); (b) affording the district additional time (up to one year from the date of the independent testing) to perform its evaluation, if the independent testing precluded comprehensive and appropriate testing by the district; (c) excusing the district from any obligation to review the independent evaluation until it had completed its own evaluation; and (d) retaining BSEA jurisdiction over the matter.

The hearing officer denied both motions, except for the portion of the district’s motion concerning retention of jurisdiction. She denied the parents’ motion because “the evaluations I ordered need not have been conducted to date.” 27 MSER at 410. She noted that under 603 CMR 28.05(1), the district was required to conduct its re-evaluation within 30 school days of obtaining substituted consent via the June 22, 2021 order. Due to the summer vacation, 30 school days had not yet lapsed.

The hearing officer denied the portions of the district’s motion that sought to alter the time frames for performance of its re-evaluation and consideration of the independent evaluation. First, she rejected the district’s “bad faith” argument by observing that, under 603 CMR 28.04(5)(b), parents are free to obtain an independent evaluation at their own expense at any time. As she stated, “the District’s argument that District evaluators’ ability to conduct their testing may be compromised does not serve to curtail the Parents’ otherwise unfettered right to secure a private evaluation of their child.” 27 MSER at 409. She noted that alternate test instruments were available to the district’s evaluators.

The hearing officer went on to explain that state and federal laws precluded extension of the time either for the district to perform its evaluation or for it to convene a Team to consider the independent evaluation report. As noted above, the district is required by 603 CMR 28.05(1) to complete its re-evaluation within 30 school days of obtaining substituted consent (assuming that the parents submit the student for assessment). Similarly, under 603 CMR 28.04(5)(f), the Team is required to convene to consider the report within ten schooldays of receiving it, “regardless of whether the District’s assessments have been completed.” 27 MSER at 409.

Districts sometimes express annoyance when parents obtain independent evaluations close to the time of the district’s evaluation or re-evaluation. Although parents should try to cooperate with districts in such matters when possible, this ruling serves as a useful reminder that parents are entirely within their rights to obtain independent evaluations any time they wish.

Joining the fray: private special education school, DMH added to ongoing cases

Joinder is a frequent topic of discussion in BSEA cases. A hearing officer may join a party when “complete relief cannot be granted among those who are already parties, or the person being joined has an interest relating to the subject matter of the case and is so situated that the case cannot be disposed of in their absence.” BSEA Rule I(J). On a motion for joinder, the hearing officer must consider “the risk of prejudice to the present parties in the absence of the proposed party; the range of alternatives for fashioning relief; the inadequacy of a judgement entered in the proposed party’s absence; and the existence of an alternative forum to resolve the issues.” Id.

Hearing officers allowed motions for joinder in two cases this quarter: Arlington Public Schools, BSEA #2111926, 27 MSER 331 (Rosa Figueroa, 8/11/21), and Westfield Public Schools, BSEA #2200773, 27 MSER 423 (Alina Kantor Nir, 9/20/21). In Arlington, the parents sought prospective out-of-district placement and compensatory services. They pointed out that the student, who was placed pursuant to a settlement agreement at an approved private special education school, Dearborn Academy (“Dearborn”), was unable to engage fully in Dearborn’s remote and hybrid learning models for portions of the 2019-2020 and 2020-2021 school years. The parents had rejected Arlington’s proposal of an in-district program for the 2021-2022 school year. The district moved to join Dearborn, arguing that it had fully funded the student’s Dearborn tuition for the 2018-2019 through 2020-2021 school years; that Dearborn was responsible for the delivery of services to the student during that period; and that Dearborn would therefore be responsible to provide any compensatory services owed to the student. The parents opposed the motion, contending that they sought compensatory services only against Arlington, based on the district’s failure to provide the student with a private school placement for the summer of 2021 and the 2021-2022 school year. Dearborn also opposed the motion, relying on the parents’ arguments.

The hearing officer concluded that, “[w]hile it is premature to ascertain the type and extent of compensatory services to which Student may be entitled, were the evidence to show that Dearborn is responsible for some form of compensatory services (including COVID-19 compensatory services) it would be impossible to issue adequate judgment in its absence resulting in potential prejudice to Arlington, Parents or both.” 27 MSER at 333. In this connection, it is worth noting DESE’s guidance that an out-of-district placement will generally “have the primary role in providing necessary recovery support and [COVID compensatory services] to a student whose service delivery and ability to make effective progress was interrupted or impacted” by a change in the program’s instructional model. Coronavirus (COVID-19) Special Education Technical Assistance Advisory 2021-1: COVID-19 Compensatory Services and Recovery Support for Students with IEPs (August 17, 2020, updated September 3, 2020) (available at https://www.doe.mass.edu/covid19/sped.html). The hearing officer further found that “administrative expediency calls for all related issues to be heard simultaneously.” Id. For all of these reasons, joinder appears to have been the sensible result.

The considerations were slightly different in Westfield, since the district there sought joinder of a state agency, DMH. Under MGL c. 71B, § 3, “although it is a school district’s responsibility to provide a student with a FAPE, the BSEA may order a state agency to provide services over and above those that are the responsibility of the school district if the services are found to be necessary to ensure that the student is able to access or benefit from the special education program and services offered by the school district.” 27 MSER at 424 (footnote omitted). The agency may only be ordered to provide services in accordance with its rules, regulations, and policies. Id. at 424-25. A party seeking to join an agency must “‘show, at least in a preliminary way, that it will be able to present evidence at a Hearing that may result in the entity being found responsible to offer some service . . . to the student.’” Id. at 425 (quoting Boston Public Schools, BSEA #02-4553 (Rosa Figueroa, 2002) (footnote omitted).

The hearing officer found that Westfield had made the necessary showing. The student was DMH-eligible. He attended a private out-of-district day program and resided in a DMH group home. The parents, who assented to Westfield’s motion, sought a residential school placement. Because DMH has a policy that it will not fund residential placements needed for educational reasons, the hearing officer stated that she would not consider requiring DMH to cost-share a residential school. She stated, however, that it would be “premature to disregard the possibility that Student may need ancillary services not currently provided—and separate from a residential placement—within the array of supports that can be provided by DMH and which DMH is uniquely situated to offer.” 27 MSER at 425. If the student were to require such supports, the hearing officer stated, complete relief could not be granted without DMH’s participation in the case. Moreover, she found that joinder would serve administrative efficiency, “so that, if needed, all viable alternatives and relief are available and can be fashioned to assure Student’s access to FAPE in a thoughtful and well-coordinated manner, at the conclusion of the Hearing.” Id. at 426 (footnote omitted). As in Arlington, the order for joinder appears well-reasoned and represents a practical solution. n

[1] The hearing officer cited to 935 CMR 501.450. It appears that 935 CMR 501.850(2)(d) was meant.
[2] The delay was due in part to the district’s having rescheduled a Team meeting when the parent brought her attorney without having notified the district in advance, and the district refused to meet until its attorney could be present. Although the hearing officer noted that this was “[c]onsistent with internal District policy,” she failed to discuss guidance from the United States Department of Education’s Office of Special Education and Rehabilitative Programs (“OSEP”) that disapproves this practice, unless the parent consents and the delay will not result in delay or denial of FAPE to the child. Letter to Andel (OSEP, 2/17/16).