INTRODUCTION

The BSEA issued three decisions and eight rulings and orders in the first quarter of 2015, all discussed in this Commentary. The three decisions on the merits concern placement disputes, with the districts prevailing in each case— two in favor of in-district placements (Boston and Richmond Consolidated S.D.) and one (Tewksbury) finding for the district’s proposed private residential special education placement as against the parent’s requested combination of an adult group home (non-special education) and a day program operated by a public school collaborative.

Several of the quarter’s rulings concerned access to student information in the context of BSEA litigation. In Worcester the district was denied an order that the parents consent to a psychiatric facility’s release of their child’s medical information. In Pembroke the district was denied an order for “substituted consent” to allow it to send the student’s records to possible alternative placements, but was allowed to send records in redacted form. In Wellesley the hearing officer refused the district’s request to withhold access to redacted records of peers with whom the district proposed to place a student. In one ruling (Westwood) a district was taken to task for overreaching in its use of subpoenas to persons with no involvement in the case at hand and with nothing remotely relevant to contribute to the hearing officer’s ultimate consideration of the issues.

In our discussion of the ruling in Worcester, inspired by the hearing officer’s affirmation of the need to respect privileges that protect certain categories of information, we take the occasion to urge that most documentation generated by lay advocates be accorded protection as “work product.”

The ruling in Lynn enforced a provision of a settlement agreement entered some years prior that limited the parents to an in-district placement if the student needed services after a certain date. In our discussion of that ruling we note that the BSEA—previously split on the issue—may now increasingly interpret and enforce the provisions of settlement agreements in light of a recent First Circuit opinion doing just that. (South Kingstown School Committee v. Joanna S., 773 F.3d 344 (1st Cir. 2014)) While we think that generally to be a positive development in BSEA jurisprudence, we urge heightened scrutiny be given to agreements that purport to involve a waiver of civil rights.

One ruling (Barnstable) provided a blueprint for recovery of costs parents incurred in connection with supporting and maintaining their child’s enrollment at a residential school the district had been ordered to fund.

Before we turn to our first quarter comments, following up on a case we highlighted in the spring of 2014, we take this opportunity to update readers on developments affecting an important resource for students struggling to recover from substance abuse. In a decision at that time (In Re: Billerica Public Schools, BSEA # 1403000, 20 MSER 68 (Figueroa, Feb. 21, 2014)), the hearing officer concluded that the BSEA lacked authority to order a district to provide transportation for a student attending one of Massachusetts’ Recovery High Schools (“RHS”)—schools that were created to address the needs of students struggling with alcohol or other substance addiction. (Such schools are not special education providers per se, although a good number of students who qualify to enroll at an RHS do need specialized instruction and/or related services.) The legislation establishing these schools required that districts pay tuition for students who are eligible for enrollment, but made no provision for transportation. The Billerica decision held that even if a student was eligible for enrollment at an RHS, the BSEA could not order a district to provide transportation without proof that the district’s IEP was inadequate. The case exposed a significant omission in the RHS enabling legislation, since qualified students are left without necessary services and supports if they cannot find a way to get to and from an RHS. A bill is now under consideration in the Massachusetts Legislature to remedy this problem. Sponsored by Representatives Tom Sannicandro (Ashland) and Elizabeth Malia (Jamaica Plain), along with Senator Sonia Chang-Diaz (Second Suffolk District) and several other members of the House and Senate, H-1815 would require transportation to and from an RHS for students who need it, with districts to be reimbursed for the cost, subject to appropriation. In these times of increasing attention to the epidemic of problems with substance abuse, we hope to see this initiative enacted. As with so many humanitarian initiatives, a little investment now is sure to save enormous costs later, both in lives and money.

No BSEA authority to order parents to consent to release of student’s medical information (with our thoughts on work product protection in BSEA proceedings)

In her ruling in Worcester P.S. and Faye, BSEA #1504291, 21 MSER 26 (Reichbach, Jan. 30, 2015), the hearing officer denied the district’s request that the parents be ordered to consent to the release of records held by a psychiatric facility where the student had been a patient. The hearing officer found that the BSEA has no authority to require parents, in the service of a district’s subpoena, to release HIPAA-protected health information. She commented that the district might seek an order in Superior Court to enforce the subpoena. In either forum, as the hearing officer noted, though, the district would need to contend not only with the limits imposed by HIPAA but also with the protections imposed by doctor- and/or therapist-patient privilege and, in the case of communications between the parents’ representative and professionals within the facility, with work-product privilege. “Privileges,” said the hearing officer, “should not be taken lightly.”

We take the opportunity here to offer some thoughts on the scope and application of privilege doctrines in BSEA proceedings.

As for the doctor-patient privilege and similar privileges, such as the therapist-patient privilege, the BSEA has consistently applied the reasoning and protocols outlined in Student & Nashoba Reg’l. S.D., BSEA # 03-0860, 10 MSER 98 (Crane, Nov. 12, 2003), to the effect that a school district can only obtain an order to produce privileged documents generated in the course of a therapeutic relationship if it establishes that its need for the information outweighs the student’s need for an inviolate therapeutic bond. As the hearing officer said in that case: “Within the context of a special education dispute, the Hearing Officer may need to consider, for example, whether disclosure of confidential information may disrupt a therapeutic alliance necessary to meet effectively the Student’s special education needs, thereby undermining the very purpose of the special education program, or whether these risks are not substantial and disclosure is necessary to protect a party’s due process rights or to inform adequately the Hearing Officer regarding an issue in dispute.”

As for the reference in the Worcester ruling to the work-product privilege, we are glad to see the BSEA honoring the need to protect a parent’s and student’s communication lines with their attorneys and other representatives as they navigate the complexities of the special education process, always with the eventual possibility of due process at the BSEA. The work-product doctrine generally covers documentation developed in anticipation of litigation by or for a party’s representative, and the definition of “representative” is not restricted to attorneys. Mass. R. Civ. P. 26(b)(3); Fed. R. Civ. P. 26(b)(3)(A). Because we are seeing more discovery requests and subpoenas by school districts seeking the files and communications of lay advocates, we take this opportunity to say that we believe strongly that those communications and files are covered by the work-product doctrine.

At the threshold, and regardless whether their documentation falls into the category of work product, we do not view the files and communications of non-lawyer advocates as discoverable in any event. The state and federal rules of civil procedure, by which the BSEA is generally guided, permit discovery of non-privileged matters only if the materials are relevant to a party’s claim or defense in themselves or “reasonably calculated to lead to the discovery of admissible evidence.” Mass. R. Civ. P. 26 (b)(1); Fed. R. Civ. P. 26(b)(1). In most BESA cases, an advocate is neither a fact witness nor an expert witness. The advocate’s role is generally to serve as an informed guide to the parents’ navigation of the process under IDEA; there is little or nothing in the course of that activity that would be material to the issues that the hearing officer must decide, such as the child’s profile and needs or the suitability of programs proposed to meet those needs.

Rule 26(b)(3) of both the Massachusetts and the Federal Rules of Civil Procedure explicitly protects against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party. “Representative” includes “the other party’s attorney, consultant, surety, indemnitor, insurer, or agent.” We think it crystal clear that lay advocates operating under the broad parameters of IDEA and explicitly allowed under BSEA rules to represent a party in BSEA proceedings are “representatives” under this rule. They occupy a unique role within proceedings under IDEA—a role that in many instances is akin to that of an attorney—and their communications should be protected just as are the communications of attorneys and other representatives. The rationale for protecting communications as work product, described by the Supreme Court in the lead decision in this area, Hickman v. Taylor, 329 U.S. 495, 511 (1947), certainly applies to advocates as much as it does to attorneys:

Proper preparation of a client’s case demands that [an attorney] assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. That is the historical and the necessary way in which lawyers act within the framework of our system of jurisprudence to promote justice and to protect their clients’ interests. This work is reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways ¼. Were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten. An attorney’s thoughts, heretofore inviolate, would not be his own. Inefficiency, unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served.

Since the work-product cloak only covers documents or other tangible items prepared “in anticipation of litigation,” the question might arise in some cases whether or when parents and their representatives actually “anticipated” litigation. We would urge a broad reading of that element. Our sense is that, within the system established under IDEA and Chapter 766, a parent acts in anticipation of litigation, even short of a formal rejection or partial rejection of a proposed IEP, as soon as s/he questions a school district’s actions or refusals to act with regard to a child’s special education status or needs. The process defined under IDEA and Chapter 766 offers a relatively quick path for the completion of evaluations, team deliberations, formal proposals, formal rejections or partial rejections, with mediation available at any point, and a statutorily defined procedure for hearing by an impartial hearing officer. When a parent engages an advocate and/or an attorney, there is little question that litigation in the form of a due process hearing is a very real possibility. No advocate can ably advise a parent without assessing how the parent’s actions will be viewed by a hearing officer if the matter comes to hearing, and how the parent’s actions will support or detract from the parents’ case. Thus, all of the advocate’s work with a parent should, we think, be subject to work-product protection. For the system to work as it should, with parents as well-informed as they can be, their efforts to find reliable advice and counsel should not be chilled by the possibility that communications will be pored over one day by school districts and their attorneys.

Settlement agreement provision restricting services to an in-district program enforced

In Lynn P. S., BSEA #1500643, 21 MSER 53 (Figueroa, Mar. 13, 2015), the hearing officer interpreted and enforced a settlement agreement term that, in consideration of the district’s paying for two years of tuition at a private school through 12th grade, purported to limit the parents to an in-district program if the Team then determined that the student needed further services.

For some years, the BSEA hearing officers have been divided in their willingness to interpret or enforce the provisions of privately-negotiated settlement agreements. Those hearing officers who have declined to consider settlement agreements have generally advised parties that those agreements need to be taken up in civil court as matters of contract law, and have viewed settlement agreements as a distraction from dealing with questions that arise purely under IDEA and state special education law. In Re: Dedham Public Schools, BSEA # 05-5290, 11 MSER 155 (Figueroa, 2005); In Re: Agawam Public Schools, BSEA # 02-2374, 8 MSER 103 (Byrne, 2002); Andrew v. Norfolk Public Schools, BSEA # 97-2792, 3 MSER 55 (Byrne, 1997); In Re: Timothy W., BSEA # 96-3796, 2 MSER 213 (Belf-Becker, 1996). Other hearing officers have considered and given effect to the terms of settlement agreements, albeit cautiously, seeking to avoid allowing such agreements to vitiate a student’s right to a FAPE. See In Re: Longmeadow Public Schools (Ruling on Longmeadow’s Motion to Dismiss), 14 MSER 249 (Crane, 2008); In Re: Peabody Public Schools, 15 MSER 154 (Crane, 2009); In Re: Marlborough Public Schools, BSEA #11-3650 (Figueroa, 2011); In Re: Norwood Public Schools, 11 MSER 161 (Crane, 2005).

A recent First Circuit decision may turn the tide toward a more universally receptive approach to the consideration and enforcement of settlement agreements, at least insofar as the agreements affect rights otherwise available under IDEA. In South Kingstown School Committee v. Joanna S., 773 F.3d 344 (1st Cir. 2014), the First Circuit upheld a portion of a district court decision that turned on the application of a settlement agreement in which the parent had waived her right to obtain certain independent evaluations that might otherwise have been available at public expense. The hearing officer in Lynn cited South Kingstown in support of her ruling that the parents had foregone certain rights under IDEA by waiving them in their settlement agreement in return for funding of an outside placement for a two-year period.

The circumstances in Lynn arose from a complex history in which key elements that applied when the parties entered into their first agreement changed significantly to the detriment of the parents, though not through any action by the district. A dispute over placement was resolved initially through a multiple-year cost-share agreement supporting the student’s enrollment at the Learning Prep School (“Learning Prep”) in West Newton. As the hearing officer acknowledged in a footnote, the parties negotiated a new settlement agreement (the one at issue in this case) after Learning Prep repudiated an arrangement with the parents that had been established by its former director (the implication is that the director had agreed that Learning Prep would forgo some or all of the tuition to be paid by the parents under the agreement). At that point, the district agreed to pay full tuition through the student’s 12th grade year, after which time, if the student continued to need services, the agreement stated that those services would be provided “within Lynn as needed.”

The parents attempted in this case to obtain an order requiring Lynn to fund an outside placement. Their argument appears to have been based not so much on an effort to ignore or to invalidate the agreement’s provision that ongoing services would be provided within Lynn as it was on a discussion that occurred during Team meetings as the end of the student’s 12th grade year approached. The Team agreed that he needed ongoing services and, although apparently some mention was made of the district’s plans to try to put a program together, the parents were urged to visit and vet some outside placements. The parents argued in effect that, where the Team’s discussion included advice to investigate outside placements, and where no in-district program existed at the time, that should be deemed to vitiate the agreement’s provision limiting the student to an in-district program. The hearing officer disagreed, pointing out that no official proposal was made until the in-district program had been developed and the district had never affirmatively set aside the agreement’s limitation.

It is important to note that the agreement did not bar the parents from contesting the ability of the proposed in-district program to provide FAPE. The language of the agreement implies that any in-district program would have to be appropriate under the standards of IDEA, and the hearing officer took care to examine the program and find that it “addresses all of the areas of need identified by the [district’s] Team.”

It should also be noted that the hearing officer declined to accept the district’s argument that it was not required to convene the Team after the student’s 12th grade year. Because the agreement said nothing about that subject, the district argued that this silence constituted a waiver of the right to continuing Team process while the student received transitional services following 12th grade. The hearing officer disagreed, stating: “In effect, Lynn’s position would leave the Parent/Student at the mercy of whatever program Lynn offered, regardless of its appropriateness. ¼ Parent’s right to dispute, for example, the frequency, the types of services, or options regarding in-district placements has not been waived nor is it precluded by this Ruling.”

A difficult fundamental issue lurks behind the analysis in this case—what if the agreement had explicitly provided for an absolute waiver of the right to contest the appropriateness of the in-district placement that would be offered when the time came? And what if, in exercising the rights that this hearing officer found still to exist under the terms of the agreement—to dispute the elements of the program—the parties reached a stalemate, say, because the district could not provide some critical elements necessary for the student to receive a FAPE: could the hearing officer then order an outside placement? In either case, the hearing officer would be asked to preserve the student’s right to a FAPE, despite the parents’ arguably having waived that right by the terms of a settlement agreement negotiated to cover previous phases of the student’s education. Can an agreement that provides for some funding of services and/or a placement for a certain period in order to resolve by compromise a contested issue validly include a provision that, in return, gives up any and all rights—barring a material change in circumstances—at a future time while the student is still otherwise qualified for an IEP? At the very least, we would expect the BSEA to exercise a heightened standard of review to ascertain whether the single most fundamental right of a student whose disability and status would otherwise qualify him for services has been validly waived. We suspect that some of the deep reluctance some hearing officers have expressed over the years to tackle the ramifications of settlement agreements may have its roots in the understanding that these questions unavoidably will arise and that the hearing officers may be called upon to hold families to what may seem to be the unfair consequences of an agreement made when needs were pressing and the later costs of waivers could not be foreseen or understood.

We have previously urged the BSEA to confirm its authority to consider and apply the terms of settlement agreements that are entered validly between parties. See, e.g., our comment on In Re: Timothy W., BSEA #96-3796, 2 MSER 213 (Belf-Becker, Aug. 28, 1996), at 2 MSER 32-33. We have also urged that in the course of such deliberations, agreements that provide for the waiver of key rights be examined with heightened regard for the centrality of those rights to the beneficiaries of special education law. See, e.g., W.B. v. Matula, 67 F.3d 484, 487 (3d Cir. N.J. 1995) (adopting a heightened standard of scrutiny for settlement agreements under IDEA), overruled on other grounds, A.W. v. Jersey City Pub. Sch., 486 F.3d 791 (3d Cir. 2007); Y.G. v. Riverside Unified Sch. Dist., 2012 U.S. Dist. LEXIS 81422, 7-8 (C.D. Cal. June 11, 2012)(taking “special precaution” to ensure a minor’s rights are protected before enforcing a settlement agreement).

Parents can’t block a district’s efforts to locate an appropriate placement

In a run of three rulings involving one Pembroke student (In re: Pembroke P.S. and Eleanor, BSEA #1503787, Reichbach, 21 MSER 23, 25 and 47, January and February, 2015), the hearing officer first opened the way, over the parents’ objections, for the school district to send redacted records to potential placements for a student with complex learning and behavioral needs (see 21 MSER at 47). The hearing officer then turned down the parents’ and their advocate’s apparently somewhat intemperate efforts to “clarify” that action (see 21 MSER 25). Lastly, the hearing officer refused to order an “emergency” independent neuropsychological evaluation (see 21 MSER 23).

Where the parents had refused to consent to the transmission of records to various potential placements for the student, apparently because they wanted to limit the choice to the one placement that they would accept, the district asked for an order providing for “substituted consent.” The hearing officer said no, finding no exception under the Family Educational Rights and Privacy Act (“FERPA,” 20 U.S.C. § 1232g; 34 CFR Part 99) to permit such an order.

She did, however, affirm that the district could send out information packets as long as the district redacted any personally identifiable information protected by FERPA. Tracking the provisions of FERPA, the hearing officer indicated that the district must redact (that is, black out) from the documentation it sends the name of the student and of family members, her address, her social security number, her student identification number, her date and place of birth and her mother’s maiden name, as well as any other information that “would allow a reasonable person in the school community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty.”

Sensibly, the hearing officer advised the parents that they might wish to reconsider their refusal to consent to the transmission of information about the student. The hearing officer pointed out that the records would be sent to potential placements regardless of their refusal, and reminded the parents that their consent would “not limit [their] ability to investigate, visit, and reject any program they feel is inappropriate.”

Unhappy with that result, the parents returned with their advocate, arguing that the order permitting the district to send out redacted records violated FERPA. They requested that the hearing officer “clarify” her order by specifying, page by page, exactly what in each record must be redacted, and they expressed an intent to bring “legal action” against “all parties” if the initial order stood.

Dealing with this onslaught, the hearing officer noted, as she had in the original ruling, that the parents’ non-lawyer advocate had failed to appear for three scheduled conference calls in which it was intended that the parties’ arguments be heard on the issues. She denied the motion for “clarification” as having no basis in law, and she ignored the threat of “legal action.”

In the third Pembroke ruling, the hearing officer denied the parents’ motion for an order that the district fund an independent evaluation, primarily on the ground that the parents had not first directly requested the district to fund the evaluation, either under the regulations providing for funding based on a family’s financial circumstances (603 CMR 28.04 (5)(c)) or under the alternative provision that would have required the district either to fund an evaluation as requested or proceed to the BSEA to demonstrate that its own evaluation was “comprehensive and appropriate” (603 CMR 28.04 (5)(d)). She noted that even though a hearing officer, under some circumstances, has authority to order additional evaluations at public expense in pending proceedings (603 CMR 28.08(5)(c)), such an order would be premature in this case.

The hearing officer’s responses to the various motions brought by the parents through their advocate are patient, measured, and respectful, and the rulings seem correct. The motions themselves and what evidence we see in the ruling of the activity on the parents’ behalf unfortunately display an apparent lack of focus and disorganization in the presentation of arguments, and a lack of understanding of the rules of the process, defaulting to what seems to have been a lengthy, but ultimately ineffective, shotgun approach.

The issues that arise under FERPA are complex, and their proper resolution is crucial to the aims both of protecting sensitive personal information and of enabling appropriate services to be provided to those in need. This hearing officer ably analyzed the language of FERPA and related provisions, weighed the competing interests, and arrived at a correct result. Her ruling supports the district’s effort to carry out its obligation to investigate potential placements for a student with exceptionally complex needs while, at the same time, protecting the private information of the student involved, despite the parents’ discomfort with the transmission of information to placements that they did not want to consider. The hearing officer coupled her decision with wise advice to those parents (and presumably to their advocate) to cooperate in the process.

FERPA issues in BSEA discovery of proposed peers’ IEPs

The Family Educational Rights and Privacy Act, FERPA, is intended to protect against the unauthorized disclosure, in a recognizable way, of students’ private information. As Pembroke (discussed above) reflects, however, neither FERPA nor its state counterpart, the student records regulations, 603 CMR 23.00, absolutely precludes disclosure of student records to third parties. Exceptions are made, with conditions minimizing the risk of identification of the student, when necessary to serve the interests either of the student who is the subject of the records, as in Pembroke (allowing redacted information to be sent to possible providers to meet the student’s needs), or the legitimate needs of others pursuing their own rights under applicable law.

In Wellesley and Vic, BSEA #1503712, 21 MSER 39 (Oliver, Feb. 26, 2015), the hearing officer rejected the school district’s efforts to block the parents’ request for production of redacted IEPs and behavioral plans of peers who would be grouped with “Vic” under the district’s IEP. He noted that the BSEA has long acknowledged the need for such information in cases where the appropriateness of peer grouping is a relevant issue, and has regularly ordered production under conditions that minimize the risk of disclosing personally identifiable information about the peers.

The order in Wellesley specified what would have to be blacked out in the peers’ IEPs and behavioral plans: the names of the child and his/her parents; their address; date and place of birth; gender; race/ethnicity; any language(s) other than English spoken by the student or his/her parents; and any student number assigned to the student. The hearing officer also ordered that the documents be provided only to counsel for the parents and not to the student or parents, and that counsel could share the documents only with experts assisting the parents with issues concerning peer grouping and related issues. He indicated that the documents or portions of them could be submitted as exhibits at hearing.

The ruling alludes to a prior oral ruling in which the hearing officer had denied production of other related documents. We would guess that these other requested documents included relevant peer documentation other than their IEPs, such as their most recent neuropsychological and other key evaluations. While the BSEA sometimes places this limitation on parents’ requests for documents relevant to peer grouping, we disagree with that result. We note that IEPs rarely include all of the information that is relevant to a peer’s comparability or pedagogical compatibility with a student, and they frequently contain errors and misleading information. The information in IEPs is recorded by school district scribes who, in the press of tight schedules and competing demands, will include information or not as they deem necessary or appropriate in the Team process, or as they may be directed by supervisors, and who are as prone as anyone to omitting important information or describing it inaccurately. Accordingly, IEPs are often not as thorough, accurate or informative as necessary for an expert to assess the appropriateness of a proposed peer group for a student. Given that redacted IEPs must be produced because of their relevance and propensity to lead to relevant information in a BSEA proceeding, it is difficult to see why other related documents should be precluded from discovery.

Overreaching in a district’s subpoenas slapped down

In a pair of related rulings in Westwood Public Schools and Uriel, BSEA #1503636, 21 MSER 51 and 52 (Byrne, Mar. 3, 2015)^[1], the hearing officer denied a school district’s efforts to delve into the pecuniary and/or professional relationship between parents, grandparents, one of their expert witnesses, and both the private special education school where the parents sought to have the district place the student and the hospital that employed the parent’s witness.

The district had attempted to subpoena not only the usual types of documents that concern the student in question (the expert’s documentation around her evaluation and observation(s), and the like), but also records from individual board members of the hospital facility where the expert was employed and from the hospital itself. The district appeared to be fishing for information about the parents’ donations to charitable trusts related to the hospital. The district also served a subpoena on the private school sought by the parents, seeking specifics about other students that the expert had evaluated and other information about her relationship with the school.

The hearing officer rejected the requests for the private school’s board and committee documents and for records reflecting the expert’s evaluation of other students, finding these requests overly intrusive and burdensome without countervailing benefit. While the hearing officer acknowledged that “the existence of relationships that could affect the credibility of any witness, and therefore the weight to be accorded to the witness’s opinion or expertise, is an appropriate avenue for exploration,” she noted that “it suffices for BSEA purposes to elicit acknowledgement of those relationships through testimony or less intrusive discovery devices.”

Moreover, the hearing officer found the extent and types of the district’s demands for records of the parents’ donations to hospital-related trusts to be “so far from relevant in this type of administrative hearing, and so personally intrusive, as to raise serious concerns as to Westwood’s intent in issuing the contested subpoena.” In her comments regarding the subpoenas issued to individual members of the board overseeing the hospital’s charitable trust, seeking 13 years of financial information about the student’s parent, the hearing officer not only quashed the subpoenas but declared that “the number, target and intrusiveness of the supoenae fall far outside the customary parameters of BSEA practice without reasonable justification, raising concerns about Westwood’s intent in serving these subpoenas.” While she did not say so explicitly, it seems apparent that the “intent” the hearing officer suspected had driven the district’s issuance of the subpoenas was its determination to harass and drive up the costs of litigation for the parents with groundless demands for information and to cause inconvenience and expense to third parties—the parents’ expert, the hospital, the private school, and individuals who served on boards supporting those entities—with the aim of undermining the relationships between those entities and the student’s family.

We hope that the unflinching clarity with which this district’s unreasonable actions have been brought to a halt in these rulings will cause districts to think twice before they act on the temptation to use the tools of discovery to intimidate and harass parents and their supporting experts and providers.

Toting up the bills—the adjudicator as accountant

In Barnstable Public Schools, BSEA #11-1387C, 21 MSER 18 (Berman, Jan. 20, 2015), the hearing officer was asked to order reimbursement of more than $76,000 of expenses that the parents claimed were incurred in connection with the student’s placement at an out-of-state private special education school, Franklin Academy—a placement that the hearing officer had ordered Barnstable to fund in an earlier decision. The parents’ request was denied except for a little under $5,000.

The criterion that the hearing officer used to determine whether a cost was to be reimbursed was whether the expense was “necessary to ensure student’s access to or benefit from his program of instruction.” She also stated that, to be reimbursable, “the expenses must have been actually incurred by the Parents and must have been reasonable in nature and amount.”

Under these criteria, she denied reimbursement for the following items:

Where Franklin Academy “strongly recommended,” but did not require, the student’s participation in trips with other students scheduled during vacation breaks, and where there was no expert evidence to demonstrate that the student needed to participate in the trips in order to derive meaningful benefit from the Franklin Academy placement, the costs of participating in trips to the Grand Canyon and Hawaii were denied.

Reimbursement for the costs of parents’ lodging and meals for parent training sessions, graduation attendance, and a field trip was denied, again because the hearing officer found that these activities were not essential to the student’s access to or benefit from the placement.

No reimbursement was ordered for the costs of bedding and related items for the student at the placement. Such items, the hearing officer stated, would be provided customarily by parents wherever their child might attend school.

No reimbursement was ordered for the parents’ costs incurred in their appeal for reimbursement. (The BSEA does not have the authority to award attorney’s fees or related costs itself, but parents who prevail may be able to recover costs in an action in court.)

No reimbursement was ordered for the costs of outside counseling provided before the student began his enrollment at Franklin Academy, there being no proof that such counseling was necessary for the student to access or benefit from his placement.

No reimbursement was ordered for lost interest on amounts the parents had advanced to pay for tuition when they placed their son unilaterally. The hearing officer stated that she was not aware of any legal authority for the BSEA to award such interest.^[2] More to the point, the hearing officer stated that the parents did not actually incur interest expenses and were not entitled to have their advance of tuition payments treated as a loan to the district on which interest could be charged.

Regarding the expenses that the hearing officer did order reimbursed, she pinned travel reimbursement to the parents’ actual out-of-pocket costs incurred in transporting the student to and from the school for weekend and vacation travel. For other items she looked for an actual requirement by the placement that the student have a computer program or similar item in order to participate in the program.

In the end, we can appreciate why the parents pursued the amounts they sought even though the basis in prior BSEA decisions may have been thin. To them, all the costs they incurred were caused solely by the district’s inability to provide a FAPE at home; thus, applying a tighter filter to the claims (tying all reimbursement to whether an item was essential for access or benefit) must have seemed unfair. As to the largest of the items—the costs of participating in intersession trips with peers from the school—those costs were substantial. Given that the program “strongly recommended” the student’s participation in the intersession trips, we think that reimbursement should have been awarded.

Handling expert information: share the report; obtain information from the district

In Richmond Consolidated School District, BSEA #1410881, 21 MSER 40 (Scannell, Jan. 6, 2015), the adolescent student at issue had been diagnosed with Asperger’s Syndrome, ADHD, anxiety, OCD, motor delay, sensory difficulties, and a math disorder—a dramatically uncomfortable profile for a young adolescent to carry. Following difficulties in school, including assaultive behavior and inappropriate language to a female peer and to a teacher, the student was assessed and provided with an IEP for a partial inclusion program. In the spring of 2013 he was hospitalized for increased anxiety and OCD behavior. Upon discharge he was home-tutored with a physician’s certificate through the end of the school year. He then moved to a wilderness program for the summer. While he was there, an evaluator confirmed his diagnoses and recommended placement at a residential program. His parents placed him unilaterally at the Hillside School, a non-special education school that caters to students with difficulties with organizational skills, behaviors and social pragmatic skills. When the Hillside placement did not work out, in the spring of 2014 the parents removed the student and he returned to a home-schooling model with tutoring provided by the district.

In June 2014 the Team met to discuss his three-year evaluation, following which the parents agreed to a transitional assessment, an occupational therapy assessment and a math evaluation. The parents requested that an IEP be developed in the meantime. The resulting IEP offered a partial inclusion program with a number of supports and services. The parents rejected that proposal immediately, notified the district that they were enrolling the student at the Middlebridge School in Rhode Island, a school for students with language-based disabilities and pragmatic skill deficits, and requested funding.

The hearing officer upheld the school district’s proposed IEP. She characterized the school’s witnesses as responsive, caring, cooperative and flexible, while painting a picture of the parents as withholding and resistant. She also differentiated between the student’s behavior at home and his behavior at school, accepting the school’s testimony to the effect that, other than occasional behavioral problems (increased anxiety after school vacations and problems focusing in class), the student was engaged and made progress. She dismissed the parents’ concerns that the student had been bullied because they had not reported their concerns and the school witnesses said they had not seen indications of bullying.

The hearing officer’s confidence in the testimony of the school witnesses carried the day for the district, and problems with the parents’ expert evidence made it easy for her to set that evidence aside.

The parents’ chief sources of expert support for their argument that the student needed an all-waking hour program were a psychologist who had completed an evaluation while the student was at the wilderness program in the summer of 2013 and a pair of evaluators—one a specialist in transition services and the other an autism expert—who completed a report that was issued in October 2014. The hearing officer gave the report generated during the wilderness program little weight, because, she said, the evaluator, who had seen the student for testing on one day in July 2013, did not testify at the hearing, never spoke with Richmond staff, never solicited information from Richmond about its program, never observed the student in any setting, and never reviewed the proposed IEP.

As for the evaluation by the transition and autism specialists, it was fatal that their report was not provided to the district until it showed up among the parents’ exhibits for hearing. The hearing officer noted that “to allow the parents to rely on the testimony and report of [the two experts] to attempt to prove that the IEP was not reasonably calculated to provide a FAPE to [the student] would circumvent the TEAM process, violate the special education laws and prejudice the school district” and, accordingly, she had “not given any weight to the testimony of [those experts] or their respective report.”

It seems possible—even likely—that an adolescent such as the one in this case, with a history of intractable anxiety, social navigation difficulties, odd and/or aggressive behaviors toward his peers, and related dysfunction rooted in the right brain and frontal lobe impairments that underlie autism, will struggle to the extreme in a large and socially challenging middle school or high school setting. A student with this kind of profile can sometimes appear to hold it together, more or less, in the relative structure of a school program, and then exhibit unhappiness and dysfunctionality in the less structured environments of the home and community. Thus it is not unusual to see parents, witnessing the child’s unhappiness and desperate to find a way to help him acquire more pro-social skills and understandings of his world, exploring alternative facilities where the mission is devoted to such needs. They look not only for the structures and approaches that are designed for that purpose, but also for comparable peers and a learning community that is confirming and supportive at the heart. They hope thereby to remove a major element of dysfunction in the public school: the sense, conscious or not, that one is different and less worthy than his peers and the consequent investment of tremendous emotional and intellectual energy into hiding these feelings and/or shakily attempting to hold one’s ground when he does not naturally understand the signals around him.

Was that the case for this student? Very possibly, and the story might have been told in a credible manner by experts if their contributions had not been fatally flawed, one by having omitted from her evaluation any contact with the public school, either to learn the staff’s insights regarding the student or to familiarize herself with the program that the district offered, and the other two by the parents’ failure to produce the report until the hearing.

The decision reports the district’s actions and opinions with far too much laudatory credence, however, for us to think that the outcome would have been any different had the experts’ contributions been generated and/or introduced flawlessly. Parents had the burden of proof and the standard of “meaningful” or “effective” progress can be difficult to apply, especially where social/emotional status and skills are at issue. Unless a hearing officer considering a student like this one can be convinced to centralize the importance of his social/emotional development, to acknowledge the concentrated, inch-by-inch direct teaching, support and reinforcement that is typically necessary for such a child to progress, and the many factors within a large school setting that, without exceptional systemic attention, can easily undermine such a student’s progress, reports by school teachers that everything seems, for the most part, just fine will carry the day.

Still, with the odds as they are, in cases like these where experts are essential to one’s prospects, one hopes that the contributions of those experts will always be as tightly and deeply data-grounded as possible, not just on the side of understanding the child himself, but also in assessing the school’s environment and approach. Those contributions must always be shared in a timely way with the district so that by the time a hearing is underway the district has no distracting arguments to make and the only issue is the credibility of the expert’s opinion.

Shifting positions; a demand for an unsupportable teaching approach; a combative relationship, and apparent bias against public schools—a formula for a parent loss

The student in Boston P.S., BSEA #1503083 and #1401653, 21 MSER 1 (Figueroa, Jan. 2, 2015)—a case in which the parent proceeded pro se—was a six-year-old boy who had developed profound deafness at two months and who had received a cochlear implant at age two and a half. At age three, in August 2011, he entered a pre-school program at Boston’s Horace Mann School, where he remained enrolled until his parent removed him at age five, in February 2014, following some hostile exchanges with staff at that school. The parent wished Horace Mann to teach without the use of sign language, believing that simple exposure to the spoken word would enable the student to learn to understand and speak. She apparently showed up at Horace Mann many times without notice, monitoring the staff, Boston claimed, to ensure that signing was not used. She witnessed a staff member signing at one point at least and had a number of angry interactions with staff and administrators.

At home no signing was used—the student’s family did not know how to sign and had made no effort to learn, as they were committed to the belief that immersion in language would suffice. There were issues around the consistent use of the student’s speech processor (a necessary device for the student to gain language following the cochlear implant). For instance, his processor was lost or nonfunctional for a period of several months.

Following an extensive evaluation over the summer of 2014 by the Clarke School, a private approved special education program in Boston, the parent requested placement at the Clarke. Boston offered, as a settlement proposal, to support placement instead at READS Collaborative. When Clarke declined admission for lack of a peer cohort, the parent accepted placement at READS, but refused to settle an issue concerning compensatory services for the period during which the parent had removed the student from school. Boston ultimately sought by this proceeding to have its Horace Mann program reinstated as the appropriate placement for the student. The district did not contest READS’ appropriateness, but insisted that its own program was also appropriate, making an outside placement unnecessary.

In her decision the hearing officer found ample evidence, based on information from Boston’s and READS service providers and independent experts from Clarke, that the student had progressed effectively against great odds while at Horace Mann. Service providers and Clarke evaluators urged that language be taught with the support of sign language and that sign language and spoken language be used in tandem in all environments. The hearing officer found that the student had made progress despite the lack of signing at home and the parent’s frequent visits and challenges to the staff and administration at the Horace Mann School, and despite the loss of use of a speech processor for several months. The implication was that the student would have made even better progress had the parent learned and employed signing at home.

The hearing officer based her findings primarily on the evidence of professionals, discounting much of the parent’s testimony and arguments because of the parent’s inconsistencies and apparent bias against public schools. It is clear from the hearing officer’s description that the parent greatly tested the patience of her son’s teachers and their supervisors, to the point that the hearing officer questioned the parent’s real motivation in contesting the teaching methodology at Horace Mann. “Until Student started attending READS Parent was vehemently opposed to the use of ASL in teaching Student language. Parent changed her position in this regard following Student’s attendance at READS, now embracing ASL and noting her excitement regarding her ability to communicate with Student more effectively using sign, some of which she had learned from Student.” As for the parent’s bias, the hearing officer commented: “Parent’s admitted bias against public schools and insistence that all her children be educated in private schools compromises the reliability of her testimony.”

All in all, this is a sad and convoluted tale with much time and energy lost to what seems to have been a parent’s distrust of the public school providers and her fervent belief in a methodology that effectively withheld a key service from the student. The parent somehow became convinced that the use of ASL would delay or undermine the student’s learning of language skills after his cochlear implant, and that total immersion without sign language support was the best path toward language development. There seems to have been a breakdown of communication and good will while the student was at Horace Mann, with the parent accusing the staff of racial bias and disrespect. One has to wonder whether there might have been some way to mediate that relationship before the breakdown led to an utter separation. We learn that in the home there was no signing and, indeed, no capability of signing or interest in learning to sign—without which, according to the experts who testified from the Clarke and elsewhere, the student was deprived of the fully consistent sign-supported approach that was necessary for him to make the progress of which he was capable. It is not clear where or from whom the parent acquired her views or why those views were so avidly maintained—at least until she saw the alternative approach working at an outside placement and began to learn signing herself. It appears likely that what must have seemed to the Horace Mann staff to be the parent’s unreasonable resistance to the approach they knew would work led to some personal animosity between staff and parent, while to the parent that staff must have seemed stubborn and unresponsive to her fundamental beliefs. There’s no telling from the decision what informal or formal efforts may have been tried before this dispute became intractable or what opportunities may have been lost along the way. We hope, now that this decision has confirmed that the Horace Mann program is essentially the equivalent of the program at READS, that the parent and the Horace Mann staff can find a way to heal their rift and move on to the benefit of the student.

Need for a round-the-clock program supports placement at a residential school rather than a day placement in combination with an adult group home nearer to the student’s home

In Tewksbury P.S., BSEA #1402344, 21 MSER 29 (Putney-Yaceshyn, Feb. 11, 2015), the parties agreed that the student—a 19-year-old young man with PDD, intellectual impairment and diabetes—needed to be in a residential program. They disagreed, however, on where that placement should be. After months of searching by the parties, only one DESE-approved residential program had accepted the student: the Devereux School, a bit more than an hour away. The parents sought an order that Tewksbury support placement at a local DDS-licensed adult group home, in combination with the student’s ongoing enrollment in a day program at the LABBB Collaborative. The hearing officer denied the parents’ request for placement in the group home and upheld the district’s proposed placement at Devereux.

This result seems a foregone conclusion, given that the group home was not an educational facility licensed by DESE to provide special education services, though the hearing officer did credit the professionalism and good will of the group home staff and their possible ability to organize a beneficial program of services for the student. The underlying facts suggest that the student was benefitting nicely from services at LABBB and that if the group home could have incorporated some structured educational services consistent with the LABBB’s approach, the experience of learning in a community-based program during the out-of-school hours of the student’s day might actually have better met his needs, particularly when one considers his need after a short few years to transition into what will probably be group home living and supported work. That was not to be, however, as the hearing officer indicated that she could not order placement in a non-special education facility—at least, not where a licensed residential special education program appeared ready, willing and able to provide a FAPE.

It is unfortunate that the strictures of special education licensing sometimes preclude what may be a more beneficial—and, as here, less restrictive—alternative for a student with complex needs, especially one who is a young adult rapidly moving toward his exit from special education into the challenges of living and working in the community. A more flexible system of supports for older students could help ease the growing difficulties we see as students leave the world of public education only to find an increasingly embattled and underfunded system of state agency services. The more professionally supported in-community experience a student can have as s/he approaches that exit point, the better chance that student may have of succeeding. Does the BSEA have the authority to think outside the box in such a case?

CONCLUSION

Discovery disputes, placement disputes, privacy issues, the application and enforcement of settlement agreements at the BSEA: the Bureau’s work in all these complex areas over the first quarter of 2015 has proven, once again, to be fair, patient, sensible, and thoroughly analyzed and researched—the work of a well-established and long-standing body of adjudicators. Some years ago now, the BSEA was moved from its position in (but not “of”) the DESE to the Commonwealth’s Division of Administrative Law Appeals (“DALA”) to quell any concerns that might have been raised about their sharing quarters with the State Educational Agency that is necessarily a party in some proceedings before it. Some hard-won legislative provisions were put in place to protect the BSEA’s status within its new home at DALA as an independent, free-standing, and integrated professional agency, well-educated and experienced in the complexities of special education law, practice and substance, and the resulting transition has been seamless with no loss of professional quality. Advocates on both sides joined, for the most part, in moving to sustain what we had, agreeing that whatever quarrels one may have had with any particular BSEA decisions over time, the agency itself was more than worth preserving. We are fortunate to have this due process model serving the interests of students, parents and school districts. Many other states are not so fortunate in the structure and quality of their due process systems under IDEA. n

^[1] Parents were represented by Kotin, Crabtree & Strong, LLP in this matter.

^[2] In some other jurisdictions courts have held that a hearing officer’s authority includes the power to order reimbursement of interest on amounts that parents have paid to a private school for tuition. E.g., Hall v. Vance County Bd. of Educ., 774 F.2d 629, 633 nn. 2 & 3 (4th Cir. 1985); Egg Harbor Township Board of Education v. S.O., 19 IDELR 15, 18 (D.N.J. 1992); Carter v. Florence County School District Four, 17 EHLR 452, 454 (D.S.C.), aff’d on other grounds, 950 F.2d 156 (4th Cir. 1991)); Fallon v. Board of Education of the Scotch Plains-Fanwood School District, 185 N.J. Super. 142, 447 A.2d 607, 554:144 EHLR (1982)[1]; and see Barrington Sch. Dist., #99-37, 34 IDELR 80 (S.E.A., RI, Nov. 28, 2000).