INTRODUCTION

This quarter marked one of the busiest for the BSEA in recent memory.  The hearing officers issued nearly forty rulings and three decisions.  One matter, In Re: Dracut Public Schools, was hotly contested, with ten rulings pertaining to this case alone, which was premised on alleged violations of Section 504 of the Rehabilitation Act of 1973.  The parent in Dracut, along with the parents in the remaining two decisions, who all proceeded pro se and were deemed uncooperative by the hearing officer for one reason or another, were ultimately unsuccessful in proving and/or defending claims at hearing.  As always, the rulings, some of which are discussed below, addressed a range of issues, including stay put, requests for public/open hearings, discovery, and the scope of the BSEA’s jurisdiction.

DISTRICT SUCCEEDED IN DEFENDING ITS IEP FOR AN OUT-OF-DISTRICT PLACEMENT

In Re: North Attleboro Public Schools, BSEA #2400326, 29 MSER 306 (Figueroa, September 8, 2023) concerned a district’s successful attempt to demonstrate that its IEP designating an out-of-district placement for the student, a ninth-grader with a complex learning profile and chronic absenteeism, was appropriate.  The result of this case was not surprising, in light of the fact that the parent did not participate in the hearing, although she did, however, submit exhibits and a written closing argument, which the hearing officer considered.

As in many other cases, it appears that the relationship between the district and the parent had been strained for quite some time.  Still, this case serves as a reminder that the process ought to be collaborative, even where longstanding feelings of mistrust may permeate.  Here, the district had determined, and the parent agreed, that the student required an out-of-district language-based program in order to address his academic needs; accordingly, the district sought, and the parent provided, consent for referrals to two private schools and one public collaborative.  In pursuing the student’s applications, the parent attempted to control the documentation that was being exchanged by changing her consent and speaking directly with the out-of-district programs in a way that conflicted with the district’s efforts.  Ultimately, the parent argued that the student be placed in a “full inclusion, out-of-district private language-based program,” a program which, according to the hearing officer, does not exist, as a program cannot be both fully inclusive and out-of-district.  An out-of-district program is, by regulatory definition, 603 CMR 28.01(14), a “special education program located in a building or facility outside of the general education environment that provides educational services primarily to students with disabilities….”  Interestingly, while a student could conceivably attend a fully inclusive, co-taught, language-based program within a neighboring district, for example, that program would not be formally characterized as “out-of-district,” even though the student would indeed be placed outside of their home district.  In any event, the parent in this matter also sought a “private” placement, which obviated the need for further elaboration on that point.

Assuming, for the sake of discussion, that the parent had legitimate concerns about the potential schools being explored and the documents being shared, the solution cannot be to obstruct the process.  Concerned about the parent’s “argumentative style,” which she found perpetuated “an endless back and forth that yielded no resolution,” the hearing officer strongly encouraged that the parties participate in facilitated IEP meetings moving forward, endorsed the district’s proposed IEP, and ordered the parent to consent to the release of referral packets to potential out-of-district schools.

ANOTHER SUCCESSFUL ASSERTION OF STAY-PUT BY A PARENT AGAINST A PRIVATE SCHOOL SEEKING TO TERMINATE STUDENT

North Middlesex Regional School District and Dr. Franklin Perkins School, 29 MSER 221, BSEA# 2400589 (Kantor Nir, July 31, 2023) is another in a recent stream of cases involving a private school attempting to terminate a student placed at their school pursuant to an IEP. The student was an eleven-year-old diagnosed with Mild Intellectual Disability, Autism Spectrum Disorder, Unspecified Disruptive Behaviors, and Frontal Lobe and Executive Functioning Deficit. The student was also in the care and custody of the Department of Children and Families (“DCF”). During the 2021-2022 and 2022-2023 school years, the student attended Dr. Franklin Perkins School (“Perkins”) as a day student funded by the district.  Perkins periodically expressed concerns about the student’s progress at Perkins.  The N1 issued on October 18, 2022, states in part, “However, Dr. Franklin Perkins School has notified parents and the district that they believe [Student’s] needs would be better met in a different placement. The district is currently working with parents to seek a new placement.” Multiple referral packets were sent out.  On May 31, 2023, the Assistant Director of Special Education for the district informed Perkins that parent was “planning to place [Student] in a Keystone Collaborative program. The start date for this is uncertain but will be no later than the start of next school year.” Via an undated letter, Perkins sent written notice to the district that student’s last day at Perkins would be June 23, 2023.   The district advised Perkins to send a termination letter with that discharge date for use in billing and to document the termination in the student’s file. Keystone did not have openings and then other packets went out. The student’s last day at Perkins was June 23, 2023.

On July 20, 2023, the parents filed Foster Parents’ Accelerated Hearing Request, asserting, in part, that the student was without an available educational program. The parent moved to assert stay-put at Perkins. Several recent BSEA decisions have held unequivocally that stay-put provisions and principles apply to publicly funded students at private schools.  In Re: Devereux Advanced Behavioral Health and Northbridge Public Schools, BSEA No. 2212001, 28 MSER 204 (Putney-Yaceshyn, Aug. 9, 2022); Student and Quincy Public Schools and The League School, BSEA# 2202940, 27 MSER 464 (Mitchell, November 18, 2021); Chelmsford Public Schools and Swansea Wood School. BSEA# 2203132, 27 MSER 491 (Kantor Nir, December 2, 2021).  While stay-put is not “location specific”, where the school district has yet to identify any alternative placements for the student, the hearing officer must look to the specifics of the situation, with an eye for ensuring the student’s continued education and for providing the student with a free appropriate public education (“FAPE”) as soon as possible.  This is true even when the private placement seeks to terminate the student for extremely assaultive behaviors.  This is also true even if all parties agree that the student’s needs could no longer be met at the private school, here, Perkins. At its most basic interpretation, stay-put is the last educational placement a student attended prior to a placement dispute – the placement delineated in the last implemented IEP. The bottom line: Perkins was the placement identified in the student’s current and most recently-implemented IEP. Even in cases where a private special education school has been found to fully follow the required termination procedures, hearing officers have concluded that if, at the time of that hearing, no appropriate placement was available, the stay-put placement was the private school placement, because, “[a]s a matter of public policy, and if the IDEA’s stay put provisions are to have any meaning, the BSEA cannot issue a decision finding that [the] [s]tudent does not have any placement in which to remain during the pendency of this matter,” and the removal of the private school as the stay-put placement would leave the student without any educational placement.  Doing so would defy the intent of IDEA’s stay-put provision. Perkins was ordered to re-admit the student immediately and the district was ordered to continue to fund student’s placement at Perkins during the pendency of the instant dispute. Sensing a lackadaisical effort by the district to identify another placement, the hearing officer “strongly encourage[d] the school district to pursue its referral efforts with vigor.”

STAY-PUT PRINCIPLES OBLIGATED THE DISTRICT TO MAINTAIN THE DAY PORTION OF THE STUDENT’S RESIDENTIAL PLACEMENT BUT ALSO DOOMED THE PARENT’S MOTION FOR AN INTERIM ORDER CHANGING THE STUDENT’S SERVICES

There were several components to the hearing officer’s decision in Newburyport Public Schools, 29 MSER 227, BSEA# 2311471 (Kantor Nir, August 4, 2023) but one involved the district’s purported failure to provide stay-put in the student’s last agreed upon placement.  The student was a fifteen-year-old who was currently receiving home-based non-educational services through insurance after she was unilaterally removed by the parents from her placement at Legacy by Gersh/Crotched Mountain (“Crotched Mountain”) in July 2022 where she had been placed by the district in November 2021, pursuant to a fully accepted IEP. She was diagnosed with Autism Spectrum Disorder, Epilepsy, and Attention Deficit Hyperactivity Disorder (ADHD). The parties agreed that Crotched Mountain was the stay-put placement.  In May 2022, the Team convened for an annual review, and the district proposed an IEP designating Crotched Mountain as the placement. The district endorsed a residential placement for the student based on the Team’s recommendations. The parents requested a day program. The Team agreed to reconvene in July 2022 to discuss the student’s transition to a residential program later that fall. In June 2022, the parents rejected the placement at Crotched Mountain, and, on or about July 5, 2022, the parents unilaterally removed the student from her agreed-upon program and placement at Crotched Mountain because they had become increasingly concerned over the student’s increased behaviors as well as by reports of the student being injured by other students. In response to the district’s motion to dismiss, the hearing officer declined to dismiss the claim about the district’s failure to provide stay-put at Crotched Mountain because responses to a public records request revealed that the district failed to pay for the day placement there.

The parents filed an additional hearing request on August 15, 2023, asserting, in part, that the IEPs were not reasonably calculated to provide student with a FAPE in the least restrictive environment. The parent then moved for an interim order for reimbursement for compensatory services and funding and staffing of their home-based programming until the decision on the full hearing. The ruling on that motion is at Newburyport Public Schools, 29 MSER 283, BSEA# 2311471, 2401600 (Kantor Nir, August 28, 2023).

Interim orders for additional services are rare at the BSEA not only because of the risk of prejudice to the non-moving party and because in most cases both prospective and compensatory services are appropriate remedies for established denials of FAPE, but because it also circumvents state and federal law regarding stay-put. Stay-put provides that during the pendency of a dispute, the student is to remain in the then-current educational placement. Massachusetts allows a temporary change in placement to be ordered by a hearing officer in certain situations consistent with federal law where, for example, maintaining the placement of the student would result in substantial likelihood of injury to the student or others. 603 CMR 28.08(7)(c).  However, the case at bar did not meet that criteria.

DISTRICT COMPELLED TO PRODUCE BOTH SIDES OF EMAIL COMMUNICATIONS

In one of the many rulings issued this quarter in In Re: Dracut Public Schools, BSEA #2312210, 29 MSER 236 (Kantor Nir, August 14, 2023), the hearing officer compelled the district to produce both sides of emails relating to matters at issue in the case, among other particulars.  During the course of discovery, the district had produced a number of emails which the school principal had forwarded to other staff; the district did not, however, produce staff responses to those emails.  State regulation, 801 CMR 1.01(8)(i), which applies to BSEA discovery procedures, “authorizes parties who do not receive some or all the discovery responses or answers requested to file a Motion for an Order Compelling Discovery.”  Here, the parent filed such motion, which the hearing officer readily allowed, in relevant part.  While the parent lodged and advanced many unsuccessful arguments throughout the litigation in this case, we applaud the Parent’s vigilance on this point.  In a subsequent ruling, In Re: Dracut Public Schools, BSEA #2312210, 29 MSER 274 (Kantor Nir, Aug. 28, 2023), the hearing officer noted that the District admitted to its error, supplementing its production to include both sides of the relevant communications.