Introduction

The BSEA had another relatively busy quarter issuing three decisions and sixteen rulings. Two of the three decisions, Swansea and Pembroke, considered a student’s eligibility. The parents succeeded in both; interestingly, the parent was represented by an educational advocate in Swansea and neither party was represented by legal counsel in Pembroke. The third decision, Nauset, was a district-initiated hearing request arising within the context of disciplinary proceedings; both parties were represented by legal counsel, and the school district succeeded on its claim. The rulings this quarter considered a number of issues, but they were heavily concentrated on joinder (four cases) and statutes of limitation/jurisdiction (five cases). The commentators have discussed only the most significant cases.

Although outside the bounds of the BSEA cases that issued this quarter, we note a significant decision of the First Circuit Court of Appeals, Doe et al. v. Newton Pub. Sch. and Bureau of Special Educ. Appeals, 48 F.4th 42 (2022).[1]  The First Circuit rendered an opinion granting the parents substantial relief in the form of tuition reimbursement for Newton’s failures to provide the student with a free appropriate education over two school years. This decision affirmed a district court decision that had overturned a BSEA decision in Newton’s favor. Be sure to check it out, particularly the court’s analysis around the importance of crediting the expert opinions of the student’s treating mental health providers and the impact on a student of a transition away from a unilateral placement.

District Applied Wrong Timelines And Reached Wrong Determinations Regarding Eligibility Of Pre-School Student

In Re: Swansea Public Schools, BSEA No. 2205000, 28 MSER 163 (Putney-Yaceshyn, July 8, 2022) serves as a “what not to do” for school districts considering the special education eligibility of pre-schooled aged students. In this case, the student was a three-year-old with a mild-to-moderate hearing impairment who had been receiving Early Intervention (EI) services.

In February 2021, when the student was just shy of 2.5, his EI provider referred him to his resident school district, Swansea, for a special education evaluation. After some back-and-forth with the parent, which included a second request for a special education evaluation over the summer break approximately five months after the EI’s provider’s initial request, Swansea informed the parents that the evaluation process would occur once the new school year commenced. At the eligibility review meeting, finally held in November 2021, Swansea reviewed numerous evaluations, including: a report from Swansea’s speech-language pathologist (Ms. Finnerty), who had little experience working with students with hearing loss; and reports from the student’s speech-language pathologist (Ms. Vale) and a district-contracted speech-language pathologist/teacher of the deaf (Ms. Rankin), both of whom had significant experience working with students with hearing loss.

Ms. Finnerty opined that the student was not eligible for special education, on the basis that her assessment placed the student in the average range for language and articulation. Ms. Vale and Ms. Rankin disagreed. Instead, Ms. Rankin explained that students with hearing loss, like the student at issue, often demonstrate skills within normal limits. Further testing, however, revealed that the student missed at least 40% of available auditory information at any given time, which, according to Ms. Rankin, adversely impacted the student within the school setting. Ms. Vale’s report also explained the ways in which the student’s hearing loss adversely impacted the student within the school setting. Both evaluators made a host of school-based recommendations. Nevertheless, Swansea rejected Ms. Rankin’s and Ms. Vale’s findings and recommendations, deeming the student ineligible for special education. Later that same school year, Ms. Vale, along with yet another appropriately qualified teacher for the deaf, Ms. Shine, observed the student at his then-current preschool placement on two separate occasions. Again, these experts concluded that the student required specialized educational supports as a result of his hearing loss. In contrast, Swansea’s special needs preschool teacher, who had never worked with a student with hearing loss, also observed the student. She concluded, solely on the basis of her observation, that the student’s skills appeared age-appropriate. The student’s second eligibility meeting in April 2022 went much like the first one, with Swansea “dismiss[ing]” the findings and recommendations of an amply qualified expert, Ms. Shine, in favor of those of a less-qualified expert.

The hearing officer explained Swansea’s first mistake, namely, that it failed in its obligation to evaluate the student for special education when it received the EI provider’s first referral in February 2021. Swansea, apparently ignoring that first referral by the EI provider and focusing only on the second referral by the parent in July 2021, erroneously applied the timeline governing the evaluation of students aged 3-21, pursuant to Part B of the IDEA. Part B requires a school district to send a consent to evaluate within five school days of receiving a request. Swansea should have applied the timeline governing the evaluation of students from birth up to, but not including, age 3, pursuant to Part C of the IDEA. In contrast to Part B, Part C obligates school districts to evaluate children who, like the student, are 2.5 years old, upon referral, so that services may begin promptly at age 3. As the student had not yet turned 3, the hearing officer concluded that Swansea erred in waiting to evaluate the student upon receiving the initial referral, thereby depriving the student of a timely evaluation and seamless transition to special education at age 3.

Extending beyond procedure, Swansea’s second and third mistakes related to their two substantive determinations of ineligibility. At the time of the student’s first eligibility meeting, Swansea had multiple reports from team members with expertise in servicing students with hearing loss; they uniformly believed that the student was eligible for special education and required services. Given this overwhelming evidence, the hearing officer reasoned that it was “difficult to see” how the Team concluded otherwise. Yet, approximately five months later, the Team again refused eligibility, despite the introduction of additional evidence of the student’s clear need for special education thorough another expert, whose opinion had been uncontroverted by an appropriately credentialed and experienced Team member. Again, the hearing office found that Swansea erred in deeming the student ineligible. Thus, the hearing officer ordered Swansea to provide the student compensatory education. Since the parent had not provided any evidence of which services would, in fact, compensate the student, the hearing officer ordered the Team to craft the compensatory remedy, while simultaneously cautioning Swansea to ensure that the Team included members with the necessary expertise—lest they make a fourth and final mistake in fashioning the relief.

District’s Finding Of No Continued Eligibility And Refusal To Fund And IEE Overturned

In Re: Pembroke Public Schools, BSEA No. 2208187, 28 MSER 172 (Figueroa, July 18, 2022) involved two key issues: whether the district properly terminated the special education eligibility of the student and second, whether the student was entitled to an independent education evaluation (IEE). The hearing officer found for the parents on both issues. Underpinning both rulings was the hearing officer’s belief that Pembroke had not been forthright with the parent.

The student was four years old at the time of the hearing, was enrolled in an in-district, integrated pre-kindergarten program, and had been receiving special education services since she transitioned from early intervention in 2020. She was found eligible under the category of developmental delay and the relevant IEP was accepted by the parent on December 1, 2021. All reports were that the student was doing well. On January 3, 2022, the district emailed the parent suggesting that the student be reevaluated to “look at her current level of need and determine what would be the best support for [student] going forward.” On January 10, 2022, the District forwarded an evaluation consent form to parent, offering to conduct an “arena evaluation which consists of speech and language, motor skills and cognitive assessment as well as an educational assessment inclusive of a history of the student’s educational progress and performance in the general curriculum.” The N1 noted that the “results of the revaluation [would] determine whether [student] continues to require special education and/or related services in order to access the general curriculum and make effective progress at school.” On January 11, 2022, Parent emailed Ms. Struk noting that in her reading of the paperwork, it mentioned that evaluations were done every three years and wondering whether that requirement only applied to older students. Ms. Struk responded the same date that “yes, for special education students evaluations are typically done every 3 years to determine level of need. In this case we are testing her before that because the Team feels we need more information now about her level of need to see if her current services and placement best meet her progress.” The parent consented to student’s re-evaluation on January 11, 2022.

The student’s Team convened on March 11, 2022, to discuss the results of student’s re-evaluation. Relying on the evaluation results and progress reports, the district found the student to no longer be eligible for special education as she was purportedly able to access the pre-school curriculum with minor accommodations. At this meeting, the district told the parent that the student’s services would cease the Monday following the Team meeting, but that they were willing to extend student’s services through the following Thursday. Parent testified that she thought she had an amicable relationship with the Pembroke staff but felt blindsided at the Team meeting. Parent emailed that she was under the impression that the testing was to see what adjustments needed to be made to the student’s IEP, not to examine eligibility and she felt misled. She stated she never would have consented to the evaluations if she knew this was the purpose. The parent rejected the change and invoked her stay-put rights. Simultaneously, the parent requested funding for an independent evaluation.

In response to the parent’s request for an independent evaluation, the district formally rejected the request and filed for hearing to affirm its finding of no eligibility and uphold its denial for funding of an independent evaluation.

In overruling the district’s finding of no eligibility, the hearing officer focused on the deeply rooted concept of parental participation in the special education process which is “intertwined with those of notice and informed consent” which is central to the IDEA, MGL.c.71B and corresponding regulations. The IDEA requires a school district to give parents “written prior notice” whenever the district “proposes to initiate or change” or “refuses to initiate or change” the “identification, evaluation, or educational placement of the child or the provision of a free, appropriate public education to the child.” The federal procedural safeguards require school districts to obtain “informed parental consent” at various stages of the process, including before it conducts an initial evaluation of a child or a re-evaluation. 34 CFR §300.9 defines consent to mean that “(a) The parent has been fully informed of all information relevant to the activity for which consent is sought…, (b)The parent understands and agrees in writing to the carrying out of the activity for which his or her consent is sought, and the consent describes that activity, (c) The parent understands that the granting of consent is voluntary¼ and may be revoked at any time.”

The hearing officer chastised Pembroke, finding that the district’s lack of transparency and misrepresentation of the true purpose of the evaluations is the type of procedural violation the federal and state special education statutes and regulations seek to prevent. The district’s attempt to terminate the student’s eligibility was also improper because it sought to do so with seven months still to go in the IEP period and termination had been contraindicated by the student’s progress reports. In addition, it was improper for the district to seek to terminate the services within the week after notifying the parent of its determination, instead of informing the parent of her stay-put rights and right take thirty days to respond to the IEP determination.

Concerning the request for an IEE, the parent challenged the comprehensive and appropriate nature of the district’s evaluations, specifically, that Pembroke failed to conduct a cognitive assessment of student. She also claimed that the Mullens, the only assessment administered by student’s teacher to ascertain her performance, fails as a measure for cognitive development noting that there are other instruments better suited to evaluate cognition, such as the Wechsler Preschool and Primary Scale of Intelligence.

The relevant Massachusetts regulation for this request for an IEE is 603 CMR §28.04(5)(d): “If the parent is requesting an independent education evaluation in an area not assessed by the school district, the student does not meet income eligibility standards, or the family chooses not to provide financial documentation to the district establishing family income level, the school district shall respond in accordance with the requirements of federal law. Within five school days, the district shall either agree to pay for the independent education evaluation or proceed to the Bureau of Special Education Appeals to show that its evaluation was comprehensive and appropriate. If the Bureau of Special Education Appeals finds that the school district’s evaluation was comprehensive and appropriate, then the school district shall not be obligated to pay for the independent education evaluation requested by the parent.”

The district claimed that the Mullens was a sufficient evaluative tool and that any more in-depth cognitive assessment would have to be conducted by school psychologist and Pembroke did not offer to have such an evaluation done. The hearing officer found that it was reasonable for the parent to believe, having agreed to district’s request to have speech and language and motor skills evaluations to be conducted by and speech language pathologist and occupational therapist respectively, that the consented-to cognitive assessments would be in-depth and conducted by a school psychologist.

Therefore, Pembroke’s finding of no eligibility was put aside and it was ordered to fund an IEE by a qualified individual to assess the student’s cognitive functioning. Interestingly, Pembroke was not represented by counsel, a highly unusual occurrence.

Hearing Officer Ordered Change In Placement For High School Student Found To Be Substantial Risk To Himself Or Others

In In Re: Nauset Public Schools, BSEA No. 2301268, 28 MSER 233 (Putney-Yaceshyn, Sep. 1, 2022), the school district, Nauset, sought an expedited hearing concerning a single issue: whether maintaining the student’s placement was substantially likely to result in injury to the student or others. As the party requesting the hearing, Nauset bore the burden of proof on the issue. The hearing officer found that Nauset met its burden, thereby authorizing Nauset to place the student, a sixteen-year-old with Oppositional Defiant Disorder and Attention-Deficit/Hyperactivity Disorder, in an interim alternative educational setting (here, a therapeutic day school) for no more than 45 school days.

Nauset sought the hearing in August 2022, prior to the start of the student’s eleventh-grade year at Nauset High School where he participated in a full inclusion program. His IEP contained only one goal in the area of executive functioning and provided limited consultation and pull-out academic support services. During his tenth-grade year, the student was alleged to have engaged in repeatedly inappropriate, harassing, and, at times, sexualized ways toward two female peers. Disciplinary hearings and a Title IX investigation ensued, and the student was suspended in February 2022 for an ultimate period of 45 days. During his exclusion, the student underwent a risk and safety evaluation with Dr. Lapuc, who had conducted an initial risk and safety evaluation of the student four years prior. Dr. Lapuc opined that the student was at low-to-moderate risk to exhibit non-compliant behaviors, including physical boundary transgressions. He recommended that the student receive cognitive behavior therapy, among other things. Notably, he did not recommend a change in the student’s placement. Subsequent to this evaluation, and on the heels of his receiving an adverse determination and apparent further exclusion in connection with Nauset’s Title IX investigation, the student posted a video on social media, riddled with expletives and threats toward no one individual in particular but “Nauset” in general. In response, Nauset heightened security at its schools and offices, and issued a no trespassing order to the student. The Team reconvened in June 2022 at the mother’s request, at which point the Team proposed sending referrals to out-of-district programs. The mother did not respond to Nauset’s request, which, arguably, prompted Nauset to file the instant case.

At the outset of her analysis, the hearing officer made it clear that the BSEA lacks jurisdiction to consider and/or overturn Nauset’s disciplinary and/or Title IV determinations, as those matters were properly raised and decided under the school district’s regular education procedures. Instead, the hearing squarely considered the hearing officer’s authority to order a change of placement for the student to an interim alternative educational setting (“IAES”) after determining that maintaining the current placement is substantially likely to result in injury to the child or to others. On the record before her, the hearing officer determined that the student’s struggles with impulsivity and self-regulation justified his placement in an IAES.

While the record may contain evidence that some Nauset administrators and teachers, along with Dr. Lapuc, harbored concerns about the student’s and others’ safety upon his return to Nauset, there is a surprising absence of discussion, in both the facts and the analysis, around the intersection between the disciplinary and special education processes. It appears that the student’s IEP Team convened in February 2022, at some point prior to or just after the initiation of his long-term exclusion. There was no evidence that the IEP Team conducted a manifestation determination review (“MDR”), or if it did, what the Team determined (and on what basis). Given that the student was slated to have attended another school during his exclusion, a collaborative, where he was to have undergone a 45-day evaluation, we surmise, but cannot know, that Nauset determined that the student’s behaviors were not a manifestation of his disabilities. If Nauset conducted an MDR, we hope that the Team engaged in robust discussion around manifestation, as there appears to be ample evidence that the student had long-struggled to maintain appropriate boundaries and was known to be overly solicitous, excitable, impulsive, and misunderstood by his peers. There was no evidence surrounding the Team’s consideration of Dr. Lapuc’s report, and there was no evidence that the IEP Team sought to implement his recommendation that the student receive cognitive behavior therapy. In fact, there was no evidence that the Team proposed any changes from the minimal level of services that the student had been receiving throughout the relevant time period in order to increase the student’s and others’ safety. Further, Dr. Lapuc, on whose testimony the hearing officer “relied heavily”, appears to have lacked critical and recent knowledge of the student, including the ultimate event that precipitated the hearing. Whereas Dr. Lupac had not recommended a change in the student’s placement based on his February 2022 assessment of the student, he later testified in support of an extended diagnostic placement, based only on the evidence presented at hearing. Ultimately, upon a more complete evidentiary record, we wonder if this case might have been decided differently.

Stay-Put Provision Applied To Private School Placement

In Re: Devereux Advanced Behavioral Health and Northbridge Public Schools, BSEA No. 2212001, 28 MSER 204 (Putney-Yaceshyn, Aug. 9, 2022) is the latest in a line of cases that have recently considered the application of the stay-put provision to publicly funded students placed at private special education schools. Akin to the cases before it, this case concerned a student whose IEP placement had been terminated by the private school, on the basis that the student presented as a clear and present danger to the health and safety of himself and others. The student had targeted a younger peer, with actions so severe that a judge issued an abuse prevention order, which the student subsequently violated. While the student’s resident school district, Northbridge, had referred the student to alternate placements, the student had not yet been accepted to any of them.

The IDEA’s stay put provision entitles a student to remain in their then-current educational placement during the pendency of a dispute. The hearing officer capably determined that stay put applies to a private school, easily disposing of Devereux’s position that stay put somehow does not apply to it. In addition to finding that the student was entitled to stay put at Devereux, the hearing officer also ordered the Team to identify and Northbridge to fund the additional supports necessary to providing the student (and the student whom he repeatedly targeted) a safe environment. While appreciating the challenges that a private school may face in these kinds of cases, we applaud the hearing officer for reaching the correct conclusion.

District Failed To Comply With The Hearing Officer’s Find Or Create Order

In Swansea Public Schools, BSEA No. 2207178-C, 28 MSER 212 (Berman, July 8, 2022), the hearing officer found that Swansea was not in compliance with her June 14, 2022 decision, where she: (1) concluded that Swansea’s proposed program was not appropriate for the student; and (2) ordered Swansea to place the student residentially at the Landmark School unless, within 15 calendar days of the decision, the district creates or locates a language-based program that can address the student’s documented needs and is located within one hour’s commuting distance from student’s home. The hearing officer further ordered that the program must be cohesive and language-based across content area curricula and serve students who have at least average cognitive ability, intact social/emotional skills, but whose academic performance is impaired by language-based learning disabilities affecting reading, writing, and math. The program also must offer daily or near-daily individual or very small group specialized literacy instruction with a reading specialist experienced in using structured, sequential, evidence-based methodologies.

On June 24, 2022, Parent filed a Motion for Emergency Hearing Re: Noncompliance with Hearing Decision, pursuant to Rule XIV of the BSEA Hearing Rules alleging Swansea had failed to create the requisite program. While the hearing officer credited many components of the program Swansea pulled together, she nevertheless found it fell short of her order because of the lack of appropriate peers. Examining the seven proposed peers in the proposed program, the hearing officer noted that four of the seven peers have cognitive deficits/intellectual disabilities. Socially, several of the proposed peers appear to need more support than student. In sum, the profiles of many of the proposed peers varied too much from the student’s profile to conform with the requirements of the earlier decision. This mismatch was not mitigated by the location of the program in the public school setting because student’s exposure to non-disabled students would be restricted to extracurricular activities and possibly classes such as physical education. However, the program could be appropriate for Student in the future, if, for example, the peer group changed, or if student’s future progress enables her to spend part of her day in supported mainstream classes.

Parents Unsuccessful In Refusing The Diploma

Bedford Public Schools, BSEA No. 2211208, 28 MSER 216 (Kantor Nir, Aug. 19, 2022) involved a 19 year old student who was eligible under the disability categories of intellectual and emotional disabilities. Student’s cognitive abilities ranged from average to extremely low (FSIQ between 60 and 66). The student’s disabilities impacted her “across all areas of her education and her life.” The student attended the Bedford Public Schools until March 2019 when she began attending the Riverview School in March 2019 pursuant to a settlement agreement. The student’s anticipated graduation date was August 29, 2022, 10 days after the instant decision. The overriding issue in the dispute was whether the student was entitled to services beyond the August 29, 2022 graduation date.

The parents maintained in spring 2022 that the student was not ready to graduate and needed a residential placement at Riverview to receive appropriate transition services. Bedford rejected this request and proposed a May 23, 2022 to May 22, 2023 IEP with transition services but also included the August 29, 2022 graduation date. The parents accepted the provision of services and the transition plan through May 22, 2023, but rejected any services inconsistent with student’s continued placement at Riverview. They also rejected the anticipated graduation date of August of 2022. The student satisfied MCAS requirements by passing the ELA portion and having the math and science portions waived by DESE because of the COVID-19 pandemic. In addition, the student amassed sufficient credits to graduate from high school. This would be enough for a typical student to be awarded a high school diploma.

In reasoning consistent with the same hearing officer’s ruling in a strikingly similar matter, In Re: Harvard Public Schools, BSEA #2108881, 27 MSER 386, (June 30, 2021, Kantor Nir), the hearing officer held that the only additional requirement imposed by IDEA relative to graduation is that a school district may not properly graduate a student with a disability if the student was not provided with a FAPE as required by the IDEA (e.g., a student did not receive appropriate transitional services, or his IEP was not reasonably calculated to provide the student educational benefit). As articulated in Doe v. Marlborough Public Schools, “nothing in the Massachusetts laws indicates that an eligible student must be graduated. Rather, eligibility requirements are set as prerequisites.” Nevertheless, a parent or student with decision-making authority may not unilaterally “refuse” a diploma for which all requirements have been met. They may, however, reject the final IEP on the basis that the student did not receive a FAPE. Moreover, once a diploma is issued, eligibility for special education may not be “continued,” and the only “proper remedy” for a denial of a FAPE is compensatory services. The appropriate measure is not whether the student was fully prepared to transition or no longer had significant needs, but whether the district had fulfilled its obligation to provide FAPE.

Here, because the district was not obligated to provide services until the student met all her transition goals or while all the student’s needs persist, they could graduate her. Since Riverview was the program the parents choose and there was no denying that the student made progress there, there could be no viable claim for a denial of FAPE. The parents could not claim that the district’s issuance of an IEP that purportedly ran to May 2023 entitled the student to continued eligibility to then when that same IEP listed August 29, 2022 as the anticipated graduation date. Summary judgment was issued accordingly with the only remaining issue being what services the student was entitled to from August 14, 2022, when the district attempted to issue the diploma, to August 29, 2022, the stated graduation date.

As we have previously commented about similar prior rulings, while no one can suggest school districts are required to remediate all of a student’s disability-related challenges before graduation, holding that school districts are absolved of continuing obligation to special needs students once they have amassed sufficient credits and have satisfied, by passing or waiver, the MCAS requirements, goes against the underpinnings of IDEA in two significant ways. First, arguably the one area where the law has gotten stronger on the side of students with disabilities in the last twenty years has been in the area of transition services. When the IDEA was re-authorized in 2004, the obligations of school districts to provide transition services and planning was significantly increased. This resulted in an explosion of myriad public and private transition programs with the intended result of better preparing students with disabilities for post-secondary school life. Second, the implication of these decisions is the exaltation of academic achievement over other areas of need that IDEA explicitly obligates school districts to address. To hold that a student who has amassed sufficient academic credits, satisfied MCAS and had a satisfactory year of services is no longer eligible for special education services runs significantly counter to the purpose of IDEA and related laws and regulations.

Limits To The BSEA’s Jurisdiction

Springfield Public Schools, BSEA No. 2208440, 28 MSER 250 (Nir, Sep. 21, 2022) involved the purported failure of Springfield to conduct a Title IX investigation. The student was a sixth grader who was suspended for purported sexual misconduct. The BSEA’s jurisdiction is limited to claims arising out of Section 504 or the IDEA. The BSEA is not deprived of jurisdiction by the fact that certain claims are not based directly upon violations of the IDEA, nor by the fact that the relief a complainant seeks cannot be awarded by the agency. The IDEA’s exhaustion requirement ensures that the BSEA is able to develop a factual record and apply its “specialized knowledge” in an IDEA based claim. The IDEA’s exhaustion requirement “applies even when the suit is brought pursuant to a different statute so long as the party is seeking relief that is available under subchapter II of IDEA. However, in Fry v. Napolean Community Schools, 137 S.Ct. 743, 752 (2017), the U.S. Supreme Court held that “exhaustion is not necessary when the gravamen of the plaintiff’s suit is something other than the denial of the IDEA’s core guarantee—what the Act calls a ‘free appropriate public education.’” Whether a claim is IDEA-based turns on whether the underlying claim is one of violation of the IDEA, or “where there are no factual allegations to indicate that a dispute exists concerning the individual student’s eligibility under the IDEA or Section 504 or the discharge of the School’s procedural and substantive responsibilities under the IDEA or [Section 504 of the Rehabilitation Act of 1973].”

Here, the parent claimed that the district’s convening of an IEP Team meeting without her violated her Fourteenth Amendment Right to Due Process. In addition, the parent alleged that the district failed to conduct a Title IX investigation into the student’s claim that he was inappropriately touched by another student and only accused her child of sexual harassment in retaliation. The hearing officer dismissed the Fourteenth Amendment and retaliation claims because those were beyond the BSEA’s jurisdiction since they did not implicate a FAPE. However, the parent’s claim that the District’s failure to report and conduct a Title IX investigation regarding the student’s allegation could have denied student a FAPE and the BSEA retained jurisdiction over that claim.

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