Introduction

Included among the first quarter’s decisions for 2010 we find: parents thwarted in efforts to obtain public payment for independent evaluations (Concord) and limited in access to evaluators who charge more than the publicly approved rates (Hudson); findings of some relatively serious procedural violations by districts without any remedies ordered (parts of Sutton and Hingham); the affirmation of an IEP’s preemption of a placement proposal where the placement cannot implement the IEP (another part of Sutton); a template for obtaining an outside language-based placement (Arlington); a cautionary example of the types of elements that might or might not support a residential placement (Taunton); a somewhat esoteric discussion of whether FAPE turns on a child’s age or grade placement (Shrewsbury); and a post– high-school placement case with implications for both the substance of a transitional-services program and a district’s obligation to provide useful information to a Parent about its offering (Natick).

District’s evaluation with warts still “comprehensive and appropriate”; no funding for an IEE

In Concord Public Schools, BSEA #10-2961, 16 MSER 1 (2010), the district initiated a BSEA proceeding under 603 CMR §28.04(5)(d) rather than agree to fund an independent educational evaluation requested by the Parents. The district’s burden under that regulation and IDEA was to prove that its own evaluation of a Student’s educational skills and needs was both “comprehensive” and “appropriate.” The Hearing Officer found for the district, despite noting that the evaluator had made some careless errors in reporting scores. In the case of some of those errors, the Hearing Officer concluded that they made no ultimate difference in the interpretation of the Student’s skill levels—no harm, no foul. Regarding an error that yielded a significantly higher percentile rank than was warranted, he concluded that it was enough for the evaluator—who was also the Student’s special-education teacher—to testify that she would not have administered additional tests to further explore the skill area in question because the Student’s overall classroom performance gave no reason for alarm. The Hearing Officer also noted that the Parents’ own expert witness indicated that she would not have performed additional testing in the area in question if the score had been correct. (As with any other key argument with which Parents wish to persuade a Hearing Officer, they’d better make sure their expert witnesses will support that argument!) The Hearing Officer concluded that “in order to be comprehensive, [an] evaluation need not be perfect and certainly need not include every possible test.”

The Parents also argued that the Student’s performance on a writing assignment in class while the evaluator was observing was below par and thus should call into question the appropriateness of the evaluation that had found the Student’s writing to be at the average level, but the Hearing Officer noted that the Student had not actually been engaged in a writing assignment but in a brainstorming exercise and that the performance was thus not relevant to the question of the appropriateness of the evaluator’s testing.

Further, the Parents argued that later testing by a Lindamood- Bell specialist, showing “a significant drop in Student’s writing test scores” as compared to the scores yielded by the district’s testing, called into question the objectivity of the district’s testing. In his recitation of this part of the history, the Hearing Officer noted that the Lindamood-Bell testing “included no interpretation of Student’s test scores, nor did the evaluator provide any specific recommendations.” Nor did the Lindamood-Bell evaluator testify. Expert testimony is critical in most cases before the BSEA, so if the Parents meant to rely on this later testing in their argument, they would have been well advised to bring the Lindamood-Bell tester to the hearing.

As is usually the case, this district enjoyed the benefit of the deference that is generally given to school districts in litigation under IDEA, notwithstanding that it carried the burden of proof as the initiating party. Parents’ lack of support from their one expert who testified concerning a critical point in the matter—whether, with proper scoring and a significantly lower score, that expert would have administered any additional tests—undermined that argument, and the lack of any testimony at all from the Lindamood-Bell evaluator whose testing yielded significantly lower scores in key areas, much less a detailed explanation of the results, undermined the argument that the district’s testing was somehow lacking in objectivity.

It is a difficult challenge for Parents to defend against a district’s effort to avoid paying for an independent evaluation, to say the least. The cost of an evaluation itself may not be much more than the cost of defending the district’s arguments regarding comprehensiveness and appropriateness of their testing. The case cannot generally be made without expert testimony, which represents a significant cost in itself, and the struggle to overcome the deference given to districts, amply illustrated in this case, tends to make the cost outweigh the potential benefit by a significant margin.

Given these realities, not to mention the relatively low rates that a district must pay to an independent evaluator—far less, generally, for many of the more highly qualified private evaluators than their ordinary rate schedule—it is difficult to find much comfort in the Supreme Court’s observation in Schaffer v. Weast, 546 U.S. 49 (2005), to the effect that access to a “second expert opinion” helps to balance the playing field for Parents. Those who can afford to engage an independent evaluator will do so; however, those who cannot afford it (and whose income makes them ineligible for access to an evaluator on a sliding fee scale (see 603 CMR §28.04(5)(c)) and whose districts decide to contest their eligibility for funding face a steep and disproportionally expensive uphill battle.

Limits on payment for IEEs . . . again

Parents in Hudson Public Schools, 16 MSER 45 (2010), having obtained evaluations of their two children by a private evaluator at the cost of $3,100 per evaluation, tried to find a way around the state-set limits on what districts may pay for independent evaluations in the federal provisions that require funding of such independent evaluations “at no cost to the Parent.” (34 CFR §300.502.) The district argued that it could require the Parents to use evaluators who agree to abide by publicly set rates without violating those federal provisions.

The federal regulations contain an additional provision precluding districts from setting conditions different from those that they impose on their own evaluations regarding such elements as the location and qualifications of an independent evaluator. Parents argued that this meant that districts could not require independent evaluators to abide by state-imposed rates. (See 34 CFR §300.502(e).)

The Hearing Officer found the regulations ambiguous and noted that no judicial precedent had been found on the point. He turned, accordingly, to the federal Department of Education’s comments on its regulations to support his conclusion that a district may restrict evaluators to those who will accept state rates. There he cited the Department’s statement: “It is the Department’s longstanding position that public agencies should not be required to bear the cost of unreasonably expensive IEEs¼. Although it is appropriate for a public agency to establish reasonable cost containment criteria applicable to personnel used by the agency, as well as to personnel used by parents, a public agency would need to provide a parent the opportunity to demonstrate that unique circumstances justify selection of an evaluator whose fees fall outside the agency’s cost containment criteria.” 71 Fed. Reg. 156, at 46689-90 (Aug. 14, 2006).

The Parents in Hudson did not attempt to argue that there were “unique circumstances” warranting the application of rates outside of those set by the state agency and, accordingly, the Hearing Officer dismissed their request for an order that their IEEs be paid at their higher rates.

We have commented previously on the effects of the rate-setting limitations on parents’ access to experts. In sum, the allowed rates tend to be significantly lower than what many of the more experienced and qualified experts outside of hospital settings charge (and probably don’t cover the costs of performing competent evaluations in hospital settings either) and, pro bono work aside, those experts become effectively unavailable to parents without means; the practical ability of evaluators to combine forces and provide the rate-setting agency (the Division of Health Care Finance and Policy) with the necessary evidence to support a rate increase is limited—and for the more experienced and well known of the evaluators, there is little incentive to try, since parents who can afford to pay their rates will ignore the process for requesting district payment. (Moreover, in a fiscal climate like ours over recent years, the odds against rate-setting agencies approving increases are steep.) Hearing Officers typically look closely at the credentials, the experience, and the particular expertise of experts in assessing the credibility of their testimony, and they also want to hear from experts about their observations of programs—tasks that are often not counted in the costs that are reimbursable by districts. A system that limits parents without means to experts who accept public rates (and who often cannot afford to go the extra mile required to make a case—attending Team meetings, observing programs, etc.) tilts heavily against such parents. This, we think, is not what the framers of IDEA and its state counterparts intended.

A placement must be able to implement an IEP; procedural violations with and without remedies

At 23 pages, the lengthiest of this quarter’s decisions, Sutton Public Schools, 16 MSER 18 (2010), offers a number of interesting nuggets. The case represents the newest installment of a long-running parent/district battle over services and placement for a 13-year-old Student with severe and complex neurological disabilities including motor and verbal apraxia, auditory-processing deficits, and working-memory deficits. The Student’s disabilities substantially and pervasively undermine his development of self care, cognition, attention, emotional regulation, literacy, and expressive and receptive language skills. He has suffered significant delays in the development of the activities of daily living (ADL), including, quite significantly, toileting, while he has gradually become aware of the gaps in cognition and behavior that he suffers in comparison to his peers, leaving him feeling shamed and anxious. Diagnoses of anxiety disorder and features of obsessive/compulsive disorder have followed upon his struggles to learn and to cope with the daily, chronic, and pervasive difficulties of navigating his world. He has limited functional language, and the extent of his ability to use words turns in part on the level of his comfort with his environment. At the time of this decision, Parents had provided for several years a home-based program with several 1:1 specialists and tutors working intensively with the Student.

Earlier clashes before the BSEA had led to orders favoring the school district (13 MSER 95 (2007) and 14 MSER 182 (2008)) regarding placement and procedural claims. This current decision yields a more complex result, however, with Parents prevailing in their claims regarding one IEP period—October 2007 to October 2008—and achieving a mixed result in their claims respecting the next period—October 2008 to October 2009.

In brief, the Parents persuaded the Hearing Officer that Sutton’s proposed IEP for 2007–2008 was fatally flawed insofar as it called for a placement that clearly could not implement critical elements of the IEP. Sutton proposed placing the Student at the Cotting School, but the IEP included significant amounts of service on a 1:1 basis, and the evidence was clear that the Cotting School would not provide services on a 1:1 basis.

The district tried to demonstrate that the Cotting School would have been able to provide sufficient services to meet the Student’s needs even without the 1:1 services that the IEP called for, but the Hearing Officer found that in light of the determination of the Team to include 1:1 services in the proposed IEP, the district could not then propose a program that omitted this key element.

Based on this determination, and on findings that services that had been procured by the Parents within their home-based program during the period of the proposed 10/07 to 10/08 IEP were appropriate, the Hearing Officer ordered the district to pay for the Parent-provided services.

In rendering this part of the decision, the Hearing Officer cited a number of federal and state regulatory provisions that emphasize that a placement decision must be made only after the Team determines the Student’s abilities and needs and develops the IEP to incorporate services to meet those needs. The placement decision is to be based on the Student’s IEP and no other factors. He cited not only the applicable regulations but also a helpful comment by the federal Department of Education appearing in the Federal Register, stating: “In all cases, placement decisions must be individually determined on the basis of each child’s abilities and needs and each child’s IEP, and not solely on factors such as category of disability, severity of disability, availability of special education and related services, configuration of the service delivery system, availability of space, or administrative convenience.” 71 Federal Register 156, at 46588 (August 14, 2006) (emphasis supplied by the Hearing Officer), cited at 16 MSER 28. (Practitioners would do well to mark this DOE comment for reference in the occasional argument over placement where non-IEP considerations seem to be driving a placement proposal.)

For the 10/08 to 10/09 IEP period, the district had turned from proposing an outside program to offering an in-district, substantially separate program. In the second major part of the Sutton decision, the Hearing Officer ruled largely in favor of the district, finding that the district’s then-proposed in-district program would have provided FAPE, with the exception of a lack of sufficient services to address major ADL deficiencies. He ordered reimbursement of the Parents’ costs for privately procured services aimed at addressing those ADL needs, but declined to order reimbursement for other unilateral services in light of his finding in favor of the public school’s proposed in-house program.

It appears from the discussion of this proposed in-district program that the pro se Parents allowed the testimony of the district’s service providers to tell the story of that program without introducing any expert observations or other examination of the underpinnings of that program. The Hearing Officer noted that the Parents “provided no probative evidence . . . with respect to the proposed classroom placement, academic portions of the IEP, and speech/language and physical therapy services.” It seems the Parents hoped to show that the program as a whole denied FAPE based on arguments about two types of service to be delivered within the program. They were successful in making that argument in one area only—ADL skills, which could be remedied by an order to provide those services—and failed to persuade the Hearing Officer that the other service they contested was inadequate—having to do with visual/motor deficits. In the latter case, the Hearing Officer declined to find that vision therapy could be delivered only through the model advocated by the Parents and ruled that the school’s proposed method was appropriate. Even if the Parents had succeeded in proving that both ADL and vision-therapy services were insufficient or inappropriate, it is highly unlikely that the basic in-district program would have been dismissed for those failings.

The ADL skills that needed attention included most notably the Student’s lack of toileting skills at the age of 13. The district attempted to argue that the Parents’ provision of services in this area should not be reimbursed because at the time of the Team meeting the district was not made aware of the extent and seriousness of the Student’s need and it was therefore “reasonable” to have omitted services addressing his lack of toileting skills. In his rejection of this argument, however, the Hearing Officer looked at what the district should have known rather than merely what it did know at the time of its action. We are sometimes concerned that districts are given too much leeway in ignoring an obvious need (see, e.g., our discussion of the Hingham decision herein). This case provides a good example of the approach that should be applied, holding a school district accountable for what it should reasonably have known about Student’s need.

The Hearing Officer zeroed in on evidence that Sutton knew, well before the Team meeting in October 2008, that the Student had not successfully learned toileting skills but took no steps to ascertain the seriousness of that problem and ignored information from the Parents and others attempting to call attention to the problem. The Hearing Officer was struck especially by the appearance in the October 2007 IEP of language indicating that information about the Student’s performance in the area of fine motor skills—the area that includes toileting skills, as the Hearing Officer noted—had been conveyed by reports of the Parents and an evaluator, that the information was incomplete, and that fine-motor performance levels would be updated when additional information was available. He then noted that the very same language appeared again in the October 2008 IEP, apparently with no formal steps having been taken to evaluate and further understand the Student’s performance levels and needs. Beyond that, shortly after the October 2008 Team meeting, the district heard more urgent information from the Parents and from a doctor concerning the Student’s toileting issues and the effect of that on his self-image, his comfort in various environments, and his availability for learning. The Hearing Officer commented, “[t]here is no evidence that Sutton obtained more recent, updated information regarding this issue until Sutton heard the testimony at the evidentiary hearing in the instant dispute.” Under such circumstances, he stated, “Sutton should have known the extent of Student’s toileting needs and how they should be addressed.”

As this analysis reflects, practitioners should pay close attention to those points in a chronology where a district has information on the basis of which it ought to be digging in to find out about a Student’s particular needs and developing services. The reasonableness of an IEP is to be measured not only by what a district knew at the time the IEP was developed but also by what the district should have known.

In one important respect, we believe that Sutton left logic behind. Parents complained that at the Team meeting for the 10/08–10/09 IEP, Sutton failed to include a special-education teacher, as required by IDEA. The Hearing Officer agreed, but ruled that the Parents were not entitled to relief because of this error. At this meeting Sutton was presenting to the Parents a major new initiative: where all previous discussion had revolved around outside-placement alternatives, Sutton had now developed a proposal for an in-district program. It neglected, however, to bring the person who would be primarily involved in implementing such a program to the Team meeting, and there was no waiver by the Parents of the requirement for her participation.

The Hearing Officer stated: “The evidence indicates that without this person present during the October 2008 IEP Team meeting, Sutton did not, and presumably was not able to, have a meaningful discussion with Parents regarding the proposed classroom placement and the services and accommodations provided by the classroom special-education teacher. Without this discussion, it would have been impossible for Parents to participate fully or meaningfully in the IEP Team process of deciding Student’s services and placement. Thus, Sutton denied Parents the opportunity ‘to participate in meetings with respect to the identification, evaluation, and educational placement of the child.’”

He went on to point out the critical importance of abiding by this kind of procedural requirement and noted that “interference with required parental participation is an actionable claim that, in and of itself, may be considered a denial of FAPE.” He also commented on the extent to which the Parents in this case had cooperated and zealously explored services and options that had arisen. But: he declined to order reimbursement for services the Parents had provided to the Student because, he noted, “Parents have never taken the position that an in-district placement could ever be made appropriate, regardless of what staffing, special-education and related services, and accommodations might be provided.”

Whatever “position” the Parents may or may not have taken, this outcome seems to contradict and undermine the very purposes the Hearing Officer so eloquently cites behind the requirement for a special educator to attend a Team meeting. These are obviously intelligent Parents who take in and appreciate information of all kinds; even if that were not so, however, why assume that if the district had abided by the law the Parents would have simply refused to hear and explore what the special-education provider would have described or to participate in discussions about modifying that proposal to try to make it work? There are any number of paths that could have been taken by the parties had this occurred, from full acceptance of the in-district program to some modified participation in that program along with services outside of school. The decision to order no remedy for this material breach of the district’s obligations seems to render toothless the Parents’ critical right to participate in the central process of IDEA—the development of an IEP. If a Hearing Officer can guess at what a Parent might or might not have done if s/he were fully informed and engaged in the decision process and refuse to enforce that Parent’s right to meaningful participation based on that speculation, what remains of the right?

Ironically, the right of which we speak is also treated as an obligation, making the Sutton ruling on this point even more problematic. The First Circuit, in a rather draconian decision in 2008, precluded Parents in a Maine community from seeking support for an outside placement because they’d left the Team meeting process and made a unilateral placement before the Team had actually designated a proposed placement. See, C.G. and B.S. v. Five Town Community School District, 513 F.3d 279 (1st Cir. 2008). They had done so because the special-education director had made it clear at the Team meeting that the district would never propose or support an outside placement for the Student in question and the Parents saw no point in remaining in the process where they believed that nothing short of a therapeutic residential placement could meet their daughter’s needs. The Court ruled against the Parents on the basis that they had failed to participate in the process—that they had abandoned it and acted before they knew exactly what the district would propose.

Doesn’t the Sutton case represent the other side of that coin? If a district effectively withholds information that is germane to a service and placement determination by failing to have a key service provider attend the Team meeting to develop an IEP, why shouldn’t the district be rigorously held to the IDEA’s requirement of cooperation, information exchange, and mutual participation as Parents are? And if a due-process agency will not order a substantial remedy for what it acknowledges is a serious breach of procedure, what has happened to the assurance in Rowley that substantive procedural failures by school districts are of comparable consequence to programmatic failures that undermine a Student’s progress?

On a relatively minor note, but one worth remarking on as a reminder to cover all bases when presenting evidence at a hearing: while the Hearing Officer did order reimbursement for some services delivered during the 10/07–10/08 IEP period, he refused to order reimbursement for the cost of the Student’s participation in a social-skills group provided by ICCD, an entity with expertise in autism, developmental disabilities, and other related areas. Testimony had been provided by the Student’s Parent about the purposes of the group and the benefits to the Student, but no ICCD representative and no other expert apparently provided evidence on these points. The Parents were thus found not to have carried their burden of proof in support of reimbursement. This seems an unfortunate lapse where telephonic testimony by an ICCD representative familiar with the program or testimony by another expert familiar with the Student’s needs in this area and the program’s approach could have carried the point.

Is less more?

Taunton Public Schools, 16 MSER 7 (2010), concerns a Parent’s appeal from the school district’s proposed placement of an adolescent with strong intelligence but a history, arising in adolescence, of serious emotional and behavioral issues, to the extent that he had come under DYS supervision, had been hospitalized extensively, and had blown out of a number of different placements, public and private. The Parent sought an order for a residential placement, but the Hearing Officer upheld the district’s proposal for a therapeutic day placement instead.

The substantive lesson of Taunton seems to be that even for some students with very troubled histories and behavioral/emotional disabilities, including hospitalizations and criminal involvement, a Hearing Officer may find insufficient evidence to order a residential placement. In this case the Hearing Officer concluded on the basis of the record she was given that this Student behaved better and engaged more effectively in his educational program in a day setting than in 24-hour settings—be they schools or hospital environments. We wonder about the extent of the record, though, and note the lack of certain types of evidence that one would expect to find in any case that concerns the possibility of a residential therapeutic placement.

The Parent had no experts to say that this Student must have 24-hour therapeutic services in order to make meaningful progress. In fact, the professionals who did speak to the issue supported the day-school alternative, most notably staff members of an alternative day therapeutic facility where the Student was assigned for a 45-day evaluation after having run from a residential facility where he had previously been sent for a 45-day evaluation.

Parents can rarely hope to win an order for a more intensive placement and services without having competent, credible, and well-informed experts testifying in support of their position. The Parents in this case not only lacked such experts on their side, but were hobbled by the reticence of at least one key expert who might have been able to speak in the Student’s behalf if she believed he needed the 24-hour supports and teaching that the Parents sought. That expert was the Student’s primary treating psychiatrist during a three-month hospitalization. The doctor issued a number of reports with her clinical assessments and recommendations but avoided making any recommendations about what level of intervention or types and frequency of services might be required for the Student to engage in his education and/or to grow socially and emotionally. Instead, she recommended that the Parent seek the assistance of the Department of Child and Family Services. She testified at the BSEA hearing that “she generally does not make” recommendations regarding educational services or placements.

Why not? Perhaps as a psychiatrist she felt it was outside her expertise to recommend educational interventions. But there are two areas very much within a psychiatrist’s, or any licensed therapist’s, expertise where her opinions and recommendations would have been on point and, depending on her opinions, may have been helpful to this Parent. First, having treated the Student over a three-month period, having formulated a diagnostic understanding of his needs and prospects, and having witnessed closely his daily interactions with others and the course of his progress in gaining (or not) the emotional and behavioral skills he needs in order to maintain stability and engage in academics, surely this psychiatrist could form an opinion on what services and what frequency of services are minimally necessary for the Student to make progress.

Second, presumably this Student’s IEP would contain, above all, goals and objectives designed to help him make effective progress in gaining social and emotional growth. The applicable regulations define “progress effectively in the general education program”to mean “make documented growth in the acquisition of knowledge and skills, including social/emotional development.” One would think that this treating psychiatrist could—and should—have spoken up about what would be required for this Student to make significant gains in his “social/ emotional development.” A hands-off approach to recommendations that would assist the Student’s special-education Team to make intelligent decisions about services and placement draws an artificial line around the professional services this psychiatrist could provide on this Student’s behalf. Sometimes the standard professional reticence about proclaiming in areas that seem to be beyond the specific area of the professional’s expertise is misplaced. At least a professional should examine the underpinnings of what s/he is being asked to assess to see if it is really outside of his or her expertise or, rather, involves issues that are squarely within that expertise but hiding behind a deceptive label, such as “educational.”

This problem was compounded by the lack of recommendations for placement and/or services from a neuropsychologist to whom the family had been referred by the same hospital for an evaluation. In addition to diagnosing a “generalized anxiety disorder” and “major depressive disorder,” this neuropsychologist apparently found evidence of a non-verbal learning disorder “leading to difficulty processing information from his environment and, particularly, in accurately perceiving emotionally charged interpersonal situations.” If this was so, then where were the neuropsychologist’s recommendations for this Student to learn appropriate social-navigation skills as well as improved coping and self-understanding and acceptance skills—which, presumably, have much to do with the Student’s ability to engage in his education, both academic and social/emotional? It is well known that persons with non-verbal learning disorders typically have great difficulty generalizing learning from one environment to another. Where were this neuropsychologist’s recommendations to ensure that this Student learns and masters social and emotional skills through practice and timely intervention across environments?

These sorts of analyses may or may not have led either or both the psychiatrist and this neuropsychologist to conclude that Student would need a program addressing his needs during all waking hours in order to make meaningful progress in the urgent areas of his growth. But the Hearing Officer had no information from either of them to that end, and it is not surprising, therefore, that she ruled in favor of only a day placement.

Repeating kindergartener loses related services

Parents in Shrewsbury Public Schools, 16 MSER 60 (2010), requested that their child be held back for a second year of kindergarten rather than move on into first grade. The Student suffers from Marfan’s Syndrome, which “affects his eyes, skeleton, blood vessels, and connective tissue.” Shrewsbury acceded to that request, but then proposed that previously provided occupational and physical therapy services be dropped.

The Hearing Officer in this case indicated in a footnote that “the special-education staff recommended that Student enter 1st grade. . . rather than repeat kindergarten, but retention is considered a regular-education decision.” Although that issue may not be central to this case, we wonder why retention could not be a reasonable accommodation to enable a child to access educational services despite his or her disability or a program or placement issue pursuant to IDEA. See, Boston Public Schools, BSEA #03-1154, 9 MSER 85 (2003) and 9 MSER 210 (2003), and Wachusett Regional School District, 9 MSER 172 (2003). Both cases noted that the BSEA has jurisdiction over promotion and retention disputes where the Parents state a FAPE issue in connection with the promotion/retention decision. In Wachusett, the Parent asserted that the Student needed to be retained in kindergarten specifically because of his disabilities, which consisted of developmental delays and a speech impairment. (We return to this point below)

The ruling in Shrewsbury was issued on the basis of arguments made by the parties regarding the standard by which the Hearing Officer would measure the Student’s entitlement to the occupational and physical therapy services that Shrewsbury wished to terminate. The Parents argued that his entitlement to these services should be determined based on his chronological age, developmental expectations, and individual potential, while Shrewsbury insisted that his need for services should be based only on his ability to access and make progress within the kindergarten curriculum, regardless of his age and developmental potential.

The Hearing Officer agreed with Shrewsbury. He did so basing his analysis primarily on First Circuit decisions arising from a Puerto Rico case (Gonzalez v. P.R. Dep’t. of Educ., 254 F. 3d 350 (1st Cir. 2001)) and a Maine case (Rome Sch. Comm. v. Mrs. B, 247 F. 3d 29 (1st Cir. 2001)), which he interpreted to mean the following: “in order to establish the right to a related service of counseling or behavioral services, for example, it is not sufficient to demonstrate that a Student has substantial emotional or behavioral deficits within the context of his or her chronological age, developmental expectations, and individual potential. It must always be shown that these deficits interfere with Student’s ability to learn. For these purposes, the term ‘learn’ or ‘learning’ refers not to learning better behavior or emotional responses, but rather, for example, learning from instruction in the classroom.”

But neither of the First Circuit cases cited by the Hearing Officer squarely dealt with the question of whether a higher standard of protection or services than the threshold standards embedded in IDEA had been established within the local jurisdiction concerned in those cases, in which event the higher standard must be enforced as if it were part of IDEA for that jurisdiction. See, Mr. I. v. Maine School Admin. Dist. No. 55, 480 F. 3d 1 (1st Cir. 2007); Town of Burlington v. Dep’t. of Ed., 736 F. 2d 773 (1st Cir. 1984). Nor, we think, did this Hearing Officer deal squarely with whether a higher standard applies in Massachusetts.

In the Mr. I,decision, the First Circuit held that IDEA requires attention to and services for a child whose needs are primarily social/behavioral, even when the Student’s academic performance is acceptable. Looking at Maine’s statutory definition of “educational performance,” the Court noted that it “squares with the broad purpose behind the IDEA: ‘to ensure that all children with disabilities have available to them a free and appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.’” The Court confirmed that the IDEA entitles qualifying students to services that “target ‘all of [their] special needs,’ whether they be academic, physical, emotional, or social.”

The Court also confirmed that “extra instructional offerings such as social-skills and pragmatic-language instruction are ‘specially designed instruction’ to ensure [a qualifying Student’s] ‘access … to the general curriculum.’” (Quoting 34 CFR § 300.39(b)(3)). The Court noted too that while “speech/language pathology services” can be classified as “related services,” 20 USC § 1401(26)(A), direct instruction in social skills and pragmatic language is also “specialized instruction” insofar as it adapts the content of the usual instruction to address a Student’s unique needs and is aimed to assist the Student to meet state educational standards.

Recent BSEA decisions that have ordered ongoing non-academic (social/emotional/behavioral) services to older students who had passed MCAS and obtained the required course credits to qualify for a diploma also seem to support an emphasis on social/emotional development equal in force to the attention given to academic progress under IDEA. Dracut Public Schools, 15 MSER 78 (2009), appeal pending; Dracut School Committee v. Bureau of Special Education Appeals, Civil Action No. 09-cv-10966-PBS (D. Mass.); Marlborough Public Schools and Dearborn Academy, 15 MSER 113 (2009), appeal pending; Doe v. Marlborough Public Schools, Civil Action No. 09-cv-11118-WGY (D. Mass.).

In the Shrewsbury decision, while the Hearing Officer alluded to the Massachusetts regulatory definition of “progress[ing] in the general education program,” he did not explicitly assess whether that definition and related provisions embody a higher standard of protection and services than the IDEA standard upheld in the Gonzalez and Rome decisions. Under 603 CMR §28.02(17), progress in the general-education program is defined as: “to make documented growth in the acquisition of knowledge and skills, including social/emotional development, within the general education program with or without accommodations, according to chronological age and developmental expectations, the individual educational potential of the Student, and the learning standards set forth in the Massachusetts Curriculum Frameworks and the curriculum of the district.” (Emphasis added.) Had he done so, we believe that the outcome might have been different in this case, since the language plainly does allow for services to address non-academic, developmental, social/emotional needs based on an assessment of a Student’s chronological age and developmental expectations and potential alongside attention to the academic needs.

Would the outcome have been different, also, if the Parents had asked (and had sufficient expert evidence to convince) the Hearing Officer to find that retention in kindergarten was, for this Student, an accommodation or placement that was necessary for him to access his program of educational and related services due to his disability, as opposed to accepting Shrewsbury’s characterization of the decision as a discretionary administrative decision that was not recommended by the special-education staff? If the Student needed to repeat the grade because of his disability—say, because his disability prevented him from making adequate progress in the acquisition of social and behavioral skills—might that fact have made a difference?

“Trust us” is not enough to support a proposed program

Natick Public Schools, 16 MSER 47 (2010), offers a mixed result for a post–high-school Student who rejected a proposed in-town transition program in favor of participation in a residential transition program (“GROW”) operated by the Riverview School in Sandwich. The Hearing Officer found for the Student and his Parent with respect to his first post–high-school year and then found that some changes in the district’s program for the second year nudged that program back over the line into FAPE.

There was no dispute that the Student needed ongoing special-education and related services following the completion of his high-school years, spent in a Life Skills program. He had enjoyed some genuine successes during those years but needed further academic instruction in reading and math, and further teaching and reinforcement addressing his lack of effective social/pragmatic, self-care, community-safety and travel skills. Moreover, little had been done during his high-school years to assess or develop his vocational interests and skills, and this area too needed focused attention and services.

The district offered to place the Student in a new program (“ACHIEVE”) that it was developing while he was in his last year of high school. The Hearing Officer held that fledgling program to be deficient, however, stating two primary reasons.

She noted first that the district had failed to provide the Parent with “a concrete, coherent description of how the embryonic ACHIEVE program was going to meet” the Student’s extensive needs. The district “provided Mother and Student with little more than a program name, the name of a lead teacher, a location, and the name of the published curriculum to be used [but] was persistently vague in demonstrating a link between Student’s unique needs and ACHIEVE.” Of the information that was available, she noted that the transitional plan offered to this Student was identical to those of every other Student in the group the district intended to enroll in the program. In the end, the decision clearly indicates that generalities, together with a vague invitation to trust the program, will not suffice when a district is proposing to serve a Student with complex needs in a brand new program. A district must at least be able to explain how its new program will actually address a Student’s needs. The Hearing Officer wrote that while the Parent “was not entitled to advance, detailed information about Student’s daily schedule, she was entitled to more information than she did receive regarding how scheduling determinations would be made so that IEP objectives could be met.”

Second, she found that the size of the proposed group of Students was too small (only three other students) and too dissimilar to the Student’s own profile (two of the three were markedly more delayed than the Student in question) to make up an appropriate peer group for him to practice and generalize the peer skills that are priorities for his development.

As noted above, the Hearing Officer was particularly struck by the fact that transitional plans for all the Students slated for the ACHIEVE program were identical and that the Student’s IEP did not specifically reflect detailed and focused transitional planning and implementation. As several decisions have begun to make clear (see, e.g., Dracut, Marlborough, and Quabbin, cited elsewhere in these Commentaries), the emphasis in IDEA on transitional planning and implementation is tied to the ultimate purposes of IDEA—to enable a Student to exit his public-school education—and, as such, deserves the full attention and commitment of the Student’s Team. We think it was a key to the outcome in Shrewsbury that the district exhibited far less than the required level of commitment and follow-through in its transitional planning for the Student in question.

The Hearing Officer’s findings regarding the second school year at issue are somewhat befuddling. In essence it appears that she determined that the addition of several new peers, such that two of the whole group might be reasonably comparable to the Student, plus the addition of some courses in sex education and some social-skills instruction with a speech/language therapist turned what was inappropriate and insufficient into a legally acceptable offering. The decision includes a number of findings regarding the deficiencies in the first year’s program, but very little discussion of what it was in the second-year program that cured those deficiencies. This lack of analysis unfortunately leaves little guidance in place for districts and Parents to assess what will pass muster under IDEA for the growing numbers of post– high-school students whose primary needs lie in the areas of social, behavioral, vocational, and ADL deficits as well as of continuing deficits in the fundamental skills of literacy and basic math.

Shouldn’t they have known? And if they didn’t, shouldn’t they have been required to find out?

In Hingham Public Schools, 16 MSER 41 (2010), Parents had made unilateral placements at two out-of-state programs to address the volatile, unsafe, and oppositional behaviors of their adolescent son. Insurance paid for the earlier placements for a while, then Parents covered the cost until their funds ran out, at which point they sought an order that Hingham fund a residential placement. In an earlier decision, 15 MSER 292 (2009), the district had been ordered to place the Student prospectively at a residential school. Now, in this current phase of the proceeding, the Hearing Officer was asked to order retroactive reimbursement for the cost of the earlier placement. He denied this request on the ground that the district had not possessed information on which to conclude that the Student needed a residential placement at the time of the initial unilateral placement, and that it was not unreasonable on the basis of the information it had at that time to propose a therapeutic day placement.

The Student at the time had been at a public collaborative program offering a therapeutic day placement, but had been asked to leave that placement after he broke into the school and was found sleeping in a closet. The night-time walk-about was part of a pattern of aberrant behavior that the Student had displayed over a considerable period. The district convened the Team and offered a different day placement. The Student attended the new day placement for three days, then decompensated, refusing to attend school any more, wandering at night, becoming involved with a neo-Nazi group, and generally behaving in ways that were patently unsafe and disorganized. The Student’s Parent then arranged for him to attend a wilderness program in North Carolina, and, after that, a residential therapeutic program in Texas.

The earlier decision in this matter favoring a residential placement prospectively had been based on reports generated by the Student’s therapist, by the program in North Carolina, and by a court-appointed psychologist evaluating the Student’s competency in a juvenile-court proceeding. In this current decision, however, the Hearing Officer found there was no probative evidence that the recommendations for residential placement in those reports could have been or should have been anticipated by the district when it developed its earlier IEP.

There was testimony, however, that a very experienced parent consultant with prior experience as an evaluator had attended the Team meeting at issue and had stated her opinion that the IEP was deficient and that the Student could not make effective progress outside of a residential program. Moreover, as the Hearing Officer acknowledged, there was no doubt that the district “needed to further evaluate Student¼or could have moved more quickly to obtain a necessary psychiatric evaluation.”

As to the consultant’s contribution to the Team meeting, the Hearing Officer concluded that she was acting more as an advocate than a consultant and had not performed expert evaluations for some years. He gave her opinion little weight accordingly.

As to the acknowledged deficiency of the district’s evaluation process, he concluded that “Parent cannot prevail in her reimbursement claim simply by establishing that Hingham did not follow appropriate evaluation procedures, unless those procedural deficiencies can be shown to have caused the IEP to be inappropriate.” Here lies the critical flaw in this decision. In his earlier decision, the Hearing Officer credited the opinions and recommendations of experts who worked with the Student in therapy after the date of that Team meeting. Those opinions were based on psychological assessments of the Student in various contexts. The Hearing Officer noted that the district should have conducted a psychiatric evaluation at the time of the Team meeting or shortly thereafter (certainly when the Student bombed out of the new day placement, or even after the Student moved to the wilderness program in North Carolina), so what makes it unlikely that the result of a properly and expeditiously conducted assessment would have reached the same conclusions as the later evaluators and therapist did? And why, if the district should have conducted that earlier evaluation and did not, should it now be held unaccountable for information that, if honestly generated, would most likely have supported a residential placement? And, as for the consultant whom the Hearing Officer discredited because she acted more as an advocate, why should the Team be entirely excused from taking steps right away to test the validity of the opinion expressed by that consultant, especially where the facts of the Student’s behaviors were so dramatic?

Conclusions like these reflect an overly forgiving and deferential posture toward school districts under a system that is supposed to be designed to ensure that appropriate services and placements are afforded to Students with disabilities. An onerous burden is placed on a parent who must play catch-up when it comes to assembling information about a student’s needs and trying to advocate for those needs to be met. Given the school district’s enormous professional resources and the responsibility—it is not too much, we think, to call that responsibility fiduciary—for these students, the process ought to lean heavily on school districts to carry out their responsibilities with alacrity and thoroughness, especially when the signs are of a student in deep trouble. This decision lets the district off the hook when it is clear that it should have taken aggressive steps at the outset to ensure the Student’s safety and engagement in his education.

A straightforward case for an outside, language-based placement

Arlington Public Schools, 16 MSER 71 (2010), illustrates the kind and quality of testing and historical evidence that can support a parent’s movement of a student to an outside, language-based placement—in this case, the Landmark School in Beverly. A review of the evidence that was reported by the Hearing Officer in support of her order finding a lack of FAPE and favoring placement at Landmark offers a catalogue of many of the typical elements that tend to show that a district’s proposed educational plan is inadequate. Testing of this Student had repeatedly reflected average cognitive ability, a language-based learning disability, and ADHD. The Student had done well in her early elementary school years in a consistent language-based program with small classes and high structure. She had declined both academically and emotionally, however, in middle school, when her program comprised a mix of inclusion and small classes. Academic testing showed regression in key areas involving especially literacy skills. The Student was embarrassed in the midst of the larger inclusion classes and did not want to seek assistance and thereby stand out from her peers. Her behavior became problematic, with school refusal and disciplinary events involving talking back to teachers, etc. While counseling was included as a service in her IEP, the district did not provide counseling and then attempted to cover its compensatory-service obligation over summer months when counseling was beside the point. The proposed program, insofar as the district offered small classes for language-based teaching or support, served a peer group that was not comparable to the Student or compatible with her needs, as several students were seen as behaviorally or emotionally disordered. A reading specialist, who was to implement critical parts of the Student’s service plan, was not certified in special education and was not seeking certification. (On this point, the Hearing Officer cited the provisions of the No Child Left Behind Act requiring that teaching personnel be “highly qualified” and those of IDEA that require special-education license or certification.)

The district’s proposed IEP would have actually reduced services and largely included mainstream classes, despite this Student’s reading and writing skills that were measured at several grade levels below her enrollment, whose ADHD rendered her in need of redirection even in her small classes at Landmark, and who had reacted to reduced services in middle school by withdrawing, losing self-esteem, and declining in her academic performance.

The Parents’ case was founded largely on the findings and recommendations of a neuropsychologist whose clear and detailed reports and testimony were persuasive enough to the Hearing Officer that she quoted them at length in the midst of her decision. We often point out in these Commentaries the importance of having credible, experienced expert witnesses as critical to the success of any parent’s case. This Parent’s independent evaluator obviously conveyed her findings and recommendations, both around her testing and in her observations of programs, in an eloquent manner, lifted to the attention of the Hearing Officer the dramatic disparities between the district’s educational model for this Student and the type of educational model that her history and depth of need showed she actually required, and provided more than ample ground for a decision for the Parents. (Comments that the Hearing Officer made concerning the district’s psychologist’s presentation suggest that the credibility of the Parent’s expert was underscored by the contrast. She noted, for example, that the school’s psychologist seemed to want to spend his time arguing that there is no such diagnosis as a “language-based learning disability,” and that he tried to criticize the elements of the recommended language-based program without a willingness to testify at any length on the elements of what he would recommend. She also commented that he had written his own report without including any specific recommendations.) Note that even with all that, the Hearing Officer left open the possibility that the district could pull together a true language-based program for next year, and therefore declined to order continuing placement at Landmark for that year.

Conclusion

As these first-quarter comments reflect, we often take issue with the decisions issued by the BSEA. We have pointed out a number of areas in several cases where we feel the Hearing Officers have leaned too heavily in the direction of school districts, especially where they seem too prepared to find no harm and therefore issue no remedies for serious procedural violations. Regardless, there is no question that the Bureau continues to bring a highly professional and utterly serious and diligent approach to the task of deciding the hotly contested, often highly charged, and always complex issues that come before it. We are fortunate to have a due-process system in this Commonwealth with the history, independence, and, in consequence, the sophistication, fairness and professionalism that we find at the BSEA. By report, there are many other jurisdictions where practitioners and parties cannot depend on their due-process systems to yield such consistently thoughtful decisions or on their Hearing Officers to wrestle so responsibly with the complex facts that arise and the vagaries of the laws that apply. From the parents’ and children’s side, the danger of a system that does not bring such care and experience to these decisions is that the easiest outcome will usually be automatically to favor the bureaucracy to which the courts insist deference must be given. It takes very little effort to conclude that a party that bears the burden of proof, in a context where the vast advantage in access to evidence and the presumption of appropriateness belongs to the bureaucracy, has not carried that burden. Here, at least, we know that Hearing Officers resist that easy answer, and before they issue their decisions they wrestle hard and long to make sure they are right. The independence and continuing professional development of this Bureau are very much worth preserving.

Footnotes:

[1] The Parents in this case were represented by this Commentator’s law firm.