Introduction

The second quarter of 2019 was moderately busy for the BSEA, bringing a total of four decisions and ten orders and rulings.

Three of the decisions (Quabbin Regional School District, Nashoba Regional School District and LABBB Collaborative, and Framingham Public Schools) are “classic” special education cases, as they centered solely on the appropriateness of the district’s proposed educational programs. Unfortunately for the parents, they did not prevail in any of these three cases. The fourth decision (Lincoln‑Sudbury Regional School District and Boston Public Schools) involved a determination of financial and programmatic responsibility between two school districts.

The rulings considered a variety of issues. As we have come to expect every quarter, two of the rulings (Falmouth Public Schools and Middleborough Public Schools) involved the joinder of state agencies. The remainder of the rulings involved a spattering of procedural and substantive topics, ranging from preclusion (Montachusett Regional Vocational Technical School) to recusal (Easthampton Public Schools and Whitman‑Hanson Regional School District) to independent educational evaluations (Middleton Public Schools) to field trip chaperones (Mendon‑Upton Regional School District) and beyond. Similar to the outcomes of the decisions this quarter, the parents received unfavorable rulings in almost every instance.

Parent loses the battle of the experts and loses her case for a more inclusive program

The IDEA entitles every student with a disability to a “free appropriate public education” (“FAPE”). A FAPE must be provided in the “least restrictive environment” (“LRE”), meaning, “to the maximum extent appropriate, children with disabilities¼are to be educated with children who are not disabled, and special classes, separate schooling or other removal of children with disabilities from the regular education environment occurs only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.” 20 USC 1412(a)(5).

The BSEA routinely considers cases in which a school district invokes the LRE requirement in an attempt to deny a parent’s request for a more supportive program. Less frequently, we encounter cases such as Quabbin Regional School District, BSEA #1902509, 25 MSER 47 (Putney‑Yaceshyn, 3/28/19), where the parent—not the school district—is the party invoking the LRE requirement. InQuabbin, the parent argued that the district’s partial inclusion program for the student, a sixth‑grade‑boy with Down Syndrome, was too restrictive and thus inappropriate. Quabbin’s program placed the student in the general education setting for a portion of his school day (for science, social studies, specials, homeroom, and lunch) and in a substantially separate setting for the remainder of the day (for English Language Arts (“ELA”) and math). The parent, represented by counsel, filed for a hearing, seeking the student’s placement in a fully inclusive setting with supplementary aids and services for the entirety of the school day. Balancing the student’s entitlements to a program that confers a meaningful educational benefit while in the least restrictive environment, the Hearing Officer deemed Quabbin’s partial inclusion program appropriate, finding in favor of the district.

Over the course of a one‑and‑a‑half‑year period, the student underwent a series of school‑based and private evaluations to assess his progress and needs. Each time, the student’s IEP Team reconvened to consider the findings and made slight changes to the student’s accommodations, services, and/or programming based on those findings. Ultimately, however, Quabbin continued to propose a partial inclusion program for the student. In response, the parent repeatedly rejected the district’s failure to provide the student with a fully inclusive program, which spurred additional IEP Team meetings.

Overall, the school‑based evaluations, administered by teachers and providers who had first‑hand knowledge of the student’s capabilities in the classroom, revealed that while the student had certain strengths, he lacked foundational reading and math skills. Without those skills, the student would not, according to Quabbin’s evaluators, be able to access grade‑level curriculum in those subjects, particularly because ELA and math classes build upon themselves. Consistent with these recommendations, Quabbin proposed programs which provided the student’s ELA and math services in a substantially separate setting, which the parent argued was too restrictive.

To support her position that student required a fully inclusive program for all subjects, the parent primarily relied on the recommendation of Cheryl Jorgensen, Ph.D., a well‑qualified, renowned expert in the education of students with Down Syndrome. Interestingly, Dr. Jorgensen had been hired by Quabbin to observe the student’s program. Following her observation, Dr. Jorgensen recommended that the student be placed in the general education setting for his entire school day.

In the usual course, such a strong recommendation by a district‑contracted evaluator, especially one with Dr. Jorgensen’s experience and stature, carries great weight. Nevertheless, the Hearing Officer discredited Dr. Jorgensen’s opinion for several reasons. First, the Hearing Officer found that Dr. Jorgensen was not, in fact, independent, based on her testimony that she had a prior relationship with the parent, a relationship that “presumably” had not been previously disclosed to Quabbin. 25 MSER at 55. On cross‑examination, Quabbin’s attorney presented Dr. Jorgensen with copies of emails (pre‑dating the observation by at least two years), in which Dr. Jorgensen had, without any first‑hand information, opined that Quabbin did not appear to be implementing the student’s IEP. According to the Hearing Officer, this was an impermissible predetermination of the appropriateness of Quabbin’s program. Second, the Hearing Officer found that Dr. Jorgensen’s opinion was deficient insofar as she only observed the student for a portion of his school day and only reviewed limited, relevant records. Third, the Hearing Officer found that Dr. Jorgensen’s philosophy, published in an open letter to The New York Times and confirmed through her testimony, that “it is no longer educationally or morally defensible to continue to segregate students with disabilities” may have clouded her opinion in the student’s case. 25 MSER at 51.

It is unclear whether the Hearing Officer would have discredited Dr. Jorgensen’s expert opinion for any one of the above three reasons. Considering the totality of the circumstances, however, the Hearing Officer relied “heavily” on the testimony of Quabbin’s evaluators, effectively sounding the death knell of the parent’s case. Given the opinions of Quabbin’s evaluators that the pace and content of the ELA and math classes were far beyond the student’s capabilities, the Hearing Officer determined that he would not receive a meaningful benefit from attending the general education setting for those classes. Therefore, the Hearing Officer concluded that the proposed partial inclusion program provided the student a FAPE in the LRE.

This case presents a cautionary tale for parents and their experts. Where an expert’s impartiality, or even appearance of impartiality, may be called into question, there are likely to be serious consequences for the parent’s case. Unlike school districts, which typically have a stable of teachers and providers to draw upon for support in any given case, the parents and their counsel must carefully and strategically build their expert team. As a practical matter, it is wise for parents to engage more than one key expert to support their position for a number of reasons, including to guard against near‑certain loss if the hearing officer finds a parent’s key expert unpersuasive.

Student not entitled to an “ideal” transition program, especially in the absence of expert evidence to the contrary

Similar to Quabbin, Nashoba Regional School District and LABBB Collaborative, BSEA #1810420, 25 MSER 70 (Berman, 5/17/19) illustrates the importance of expert evidence to the success of a parent’s case. In Nashoba and LABBB, the parents, who proceeded pro se, challenged the appropriateness of their twenty‑one‑year‑old daughter’s in‑district transition program. Unfortunately, the parents lacked any expert support for their position that the student required a more specialized vocational program, such as the one operated by LABBB Collaborative (“LABBB”), and the Hearing Officer readily found in the district’s favor.

The student, who carried diagnoses of Autism Spectrum Disorder (“ASD”) and Attention‑Deficit/Hyperactivity Disorder (“ADHD”), had a passion for baking and sought a career in the culinary arts. Following her twelfth‑grade year at Nashoba, she entered the district’s “Transitions Program” (“Transitions”), which included classroom instruction, inclusion activities, and vocational opportunities. Over her three years in Transitions, the student’s job sites included placements at a corporate cafeteria, the dining rooms of two assisted living facilitates, Meals on Wheels, a movie theater, a nursery, and an elementary school. As part of her placements, Nashoba staff had identified the student’s “soft skills” deficits (e.g., accepting feedback and handling frustration) manifesting at her job sites and targeted them for improvement. 25 MSER at 73.

Growing concerned about the program’s ability to prepare the student for a career in the culinary arts, the parents asked Nashoba to allow them to visit LABBB, which reportedly had a culinary arts shop. LABBB, like most (if not all) public day schools, require district approval before providing interested parents with information and a tour. Nashoba refused. Instead, Nashoba engaged Frank Robbins, Ph.D., to conduct an observation of the student’s program. Dr. Robbins recommended the student’s continued placement within Transitions, with some minor adjustments. Nashoba also attempted, albeit unsuccessfully, to secure a job site for the student at a local bakery. The parents eventually filed for a hearing, arguing that Nashoba’s program was not appropriate because it did not advance the student’s transition goals related to professional baking.

The IDEA obligates school districts to “provide transition planning and services to eligible students [with disabilities] who require them¼to prepare [them] for ‘further education, employment and independent living.'” 25 MSER at 80 (quoting 20 USC 1400(d)(1)(A)). Transition services are designed, in part, to be “results‑oriented,” namely, to “encourage student independence, support generalization of skills, and promote the principle of least restrictive environment.” 25 MSER at 80.

While acknowledging the parents’ and student’s frustration with the lack of direct instruction and experience in baking, the Hearing Officer determined that the student’s program provided appropriate, results‑oriented services. Notably, the Hearing Officer reasoned that the parents had not disputed the goals and benchmarks associated with the student’s program—which she found were tied to many explicit employment‑related functions—but rather, they centered their argument too narrowly on the student’s hopeful culinary career. While it may have been “ideal” for Nashoba to have provided the student more opportunities in cooking and baking, the Hearing Officer made clear that the district was not obligated to do so. Id. at 82. Further, the Hearing Officer emphasized that the parents provided no expert testimony in support of their position. Had the parents presented expert support demonstrating that the student required services and programming beyond those provided by Nashoba in order to prepare her for employment, the case may have turned out differently. Without such support, however, the Hearing Officer concluded that Nashoba’s program was appropriate.

This case serves as a reminder that no matter how sympathetic a hearing officer may be to a parent’s case, he or she is bound by the contours of the law and the cases interpreting it. Unfortunately, it is well‑settled that an educational program need not maximize a student’s potential. We hope that school districts will, where feasible, make efforts to accommodate students’ interests and support their career aspirations, even if it is not incumbent upon them under the law. In furtherance of this objective, we also remind parents to formally document their concerns about their child’s programming in their IEP responses, so that these concerns will be apparent to the district and, if necessary, a hearing officer.

Parent loses hard‑fought case over private language‑based program

Almost every quarter, the BSEA considers a case that follows a familiar, unfortunate pattern: a student with a language‑based learning disability faces mounting academic challenges in the general education setting; the student begins to emotionally deteriorate; the school district gradually tweaks the student’s programming, increasing pull‑out supports; the student’s deterioration intensifies; and the parents eventually feel that they have no choice but to unilaterally place their child in a private special education school. Framingham Public Schools and Percy, BSEA #1905348, 25 MSER 89 (Reichbach, 6/3/19) is one of these cases.

The student in Framingham was twelve years old and had dyslexia, a language disorder, and executive functioning and memory challenges. As she progressed through elementary school, Framingham increased her educational supports outside of the mainstream, while still proposing her placement in inclusive programs. By the end of third grade, she was displaying increased anxiety at home. Her teachers and school‑based providers did not see those same symptoms in school. In fourth grade, private neuropsychological testing revealed that the student’s cognitive scores were generally in the average range, yet her academic scores were well below expectations in almost all domains. At that point, the evaluator recommended the student’s placement in small, language‑based program.

In fifth grade, the student’s anxiety worsened, particularly outside of school. She began seeing a private therapist. In response to the parent’s concerns, the student’s IEP Team convened approximately eight times. The student’s neuropsychologist observed the student’s program and, later that year, conducted a consultation and update. The parent’s expert concluded that the student was not making meaningful academic progress, that Framingham’s program did not provide the student the consistency of language‑based supports that she needed across the curriculum and her school day, and that the student required placement in a small, supportive, language‑based program. At the recommendation of their expert, the parent placed the student at the Willow Hill School (“Willow Hill”) for sixth grade, where she made a good adjustment.

Framingham’s sixth grade IEP proposed a “flexible inclusion” program, a key component of which was close collaboration between the special and general educators. 25 MSER at 101, 107. As part of the proposed program, the student would have received co‑teaching, parallel teaching, and station work, within the context of a small group of approximately eight students with similar reading, writing, and math goals. The parent’s expert observed Framingham’s program, concluding that it was inappropriate to meet the student’s needs.

While Framingham did not contest that the student’s skills were below expectations, they argued that she was making considerable growth, particularly in fifth grade. The Hearing Officer agreed, pointing to the student’s measurable progress, based on Framingham’s testing, in reading fluency and math. The Hearing Officer also pointed to the student’s growth on the MCAS. She was ultimately unpersuaded by the parent’s expert’s opinions, not because those opinions were weak for any particular reason, but because she found that Framingham’s program provided the student the targeted supports that the expert had recommended. Further, the Hearing Officer credited Framingham’s testing demonstrating that the student had made progress in fifth grade in light of her circumstances, even if her skills remained below grade level. Thus, the parent was not entitled to reimbursement for or prospective placement at Willow Hill.

This case was hard‑fought, and the parent had marshalled plenty, albeit not enough, expert support from the student’s private neuropsychologist and therapist. The neuropsychologist conducted the requisite testing, update, and program observations in order to support her findings and conclusions. Unfortunately for the parent, the Hearing Officer ultimately credited Framingham’s witnesses, coupled with the fact that Framingham’s proposed program appeared to meet the neuropsychologist’s recommendations.

We wonder to what extent the student’s placement in a new program and in a new school impacted the Hearing Officer’s decision. The transition from elementary school to middle school presents real risks to vulnerable students, especially as the pace of instruction, size of classes, and social demands all increase. This transition also presents strategic challenges in a parent’s special education case, as the student has no track record in the new program and school. Even despite years of concrete struggles in elementary school, parents are often left to prove their cases based on hypothetical, yet‑to‑be‑realized circumstances.

A fight between districts about programmatic and financial responsibility for a METCO student’s placement in an out‑of‑district program

Lincoln‑Sudbury Regional School District and Boston Public Schools, BSEA #1905403, 25 MSER 120 (Berman, 6/28/2019) follows a ruling in the same case during the first quarter of 2019 and was the only decision that parents/guardians did not lose this quarter, technically because the dispute only required a determination of school district responsibility as between Lincoln‑Sudbury and Boston for the student’s special education.

The student in this case was a Boston resident who had attended Lincoln‑Sudbury through the METCO program. She had been diagnosed with a specific learning disability in reading, ADHD, and anxiety. During ninth grade, she experienced significant social‑emotional difficulties, which prompted an extended evaluation of the student at the Dearborn STEP program (“STEP”). Lincoln‑Sudbury informed Boston of the student’s status at the start of and throughout her time at STEP.

After much effort and advance notice by Lincoln‑Sudbury, representatives from Boston attended the student’s IEP Team meeting to review the results of her extended evaluation. STEP recommended the student’s placement in a small therapeutic classroom. Boston shared information about the programming offered at its McKinley School (“McKinley”), a public therapeutic day school in Boston. Lincoln‑Sudbury concluded that it did not have a program that could meet the student’s needs, and the IEP Team discussed sending referral packets to several out‑of‑district placements, including Dearborn, McKinley, and LABBB Collaborative, among others. Lincoln‑Sudbury issued a new IEP, generally designating an unnamed day school placement.

The student and her guardian visited McKinley. Thereafter, Lincoln‑Sudbury conducted a placement meeting, a portion of which a Boston representative attended by phone upon invitation from Lincoln‑Sudbury. At the meeting, the IEP Team found McKinley to be an inappropriate placement for student, as it offered limited opportunities for inclusion, including integrated athletics, in which the student excelled. After the Boston representative prematurely left the meeting (through no fault of Lincoln‑Sudbury), Lincoln‑Sudbury presented the guardian with a proposed IEP designating a placement at LABBB; the guardian accepted the IEP and placement that same day.

Lincoln‑Sudbury funded the student’s placement and the district, along with the guardian, filed for a hearing against Boston, seeking an order that Boston was retroactively and prospectively responsible for the student’s placement at LABBB. Boston countered that Lincoln‑Sudbury had not followed proper procedures in developing the student’s proposed IEP and placement. As the party challenging the status quo, Boston bore the burden of demonstrating that Lincoln‑Sudbury violated the procedures for transferring programmatic and financial responsibility for the student’s special education.

The METCO program is in part governed by special education statues and regulations applicable to so‑called “program schools.” See603 CMR 28.10(6). These regulations proscribe a multi‑step process, where a program school (here, Lincoln‑Sudbury) determines that a student may need an alternative placement.

Under 603 CMR 28.10(6), when a program school Team “determines that the student may need an out‑of‑district placement, the Team shall conclude the meeting¼without identifying a specific placement type, and shall notify the school district where the student resides within two school days.” 603 CMR 28.10(6)(a). Next, “[t]he program school then must schedule a placement meeting, and invite members from the district of residence to participate.” 25 MSER at 127. At the placement meeting, “the program school shall first consider if the school district where the student resides has an in‑district program that could provide the services recommended by the Team.” 603 CMR 28.10(6)(a)(2). Lastly, “[i]f the placement Team¼determines that the student requires an out‑of‑district program to provide the services identified on the student’s IEP, then the placement proposed to the parent shall be an out‑of‑district day or residential school¼.Upon parental acceptance of the proposed IEP and proposed placement, programmatic and financial responsibility shall return to the school district where the student resides.” 603 CMR 28.10(6)(a)(3).

The Hearing Officer determined that Lincoln‑Sudbury had followed all required procedures. To the extent that Lincoln‑Sudbury deviated from the procedures by inviting Boston to the initial IEP meeting, instead of deferring its invitation until the second placement meeting, the Hearing Officer found that Boston was not prejudiced. On the contrary, Lincoln‑Sudbury actually provided Boston more information than it otherwise was required to under the applicable regulations. Therefore, the Hearing Officer concluded that Boston became programmatically and financially responsible for the student’s placement at LABBB on the date that the guardian accepted the IEP and placement. The Hearing Officer ordered Boston to reimburse Lincoln‑Sudbury for the cost of the student’s placement, including transportation, and to prospectively fund all costs for the duration of the accepted IEP and placement.

In this case, the Hearing Officer fluently applied the procedures outlined in the regulations to the facts at hand. In our experience, however, these procedures are not always as clear and unambiguous as they may appear from this case. Nevertheless, it is apparent that the situation presented in Lincoln‑Sudbury and Boston was squarely contemplated by these regulations. We commend Lincoln‑Sudbury for promptly and adequately partnering with the guardian to attend to the student’s needs, especially in light of, and in spite of, the ostensible push‑back that it received from Boston throughout the process.

Districts seek joinder of state agencies to parents’ cases

Both Falmouth Public Schools and Oliver, BSEA #1906369, 25 MSER 64 (Reichbach, 5/8/2019)[1] and Middleborough Public Schools, BSEA #1908850, 25 MSER 114 (Figueroa, 6/27/19) involved motions by the school districts to join various state agencies to the proceedings. The motions were partially successful in each case.

Whenever a party seeks to join a non‑party to a case, the hearing officer engages in a two‑part inquiry. First, the Hearing Officer must consider “whether complete relief may be granted among those who are already parties, or if the agency has an interest relating to the subject matter of the case and is so situated that the case cannot be disposed of in its absence.” 25 MSER at 67. Second, the hearing officer must consider “whether joinder of that agency is in accordance with the agency’s rules, regulations, and policies.” Id.

In Falmouth, the district filed two joinder motions, one to join the Department of Children and Families (“DCF”) and the other to join the Department of Mental Health (“DMH”). The district asserted that both agencies were necessary parties to the underlying case, which involved the parents’ accelerated request for hearing seeking the student’s placement in a residential, therapeutic program. Falmouth contended that the student did not require such a program for educational reasons, and, therefore, DCF and/or DMH would be the entities responsible for providing any higher level of care for the student, if ordered by the hearing officer.

The facts of the case are somewhat complex, but at the time that the Hearing Officer considered Falmouth’s motions: (1) DCF had, pursuant to a temporary agreement with the parents, assumed voluntary care of the student in order to maintain the student’s then‑placement in an insurance‑funded hospitalization program; and (2) DMH had determined, in response to the parents’ request for services, that the student did not meet eligibility criteria. With respect to the latter, while the parents had the right to appeal DMH’s final eligibility decision, they indicated that they did not intend to file for a fair hearing.

Evaluating the agencies’ relationships to the student and their interests in the case, the Hearing Officer joined DCF but not DMH. Since DCF currently had care of the student and the agency may, pursuant to its own regulations, share the cost of a student’s residential placement, the Hearing Officer deemed DCF a necessary party. In contrast, since DMH had no current relationship with the student and the BSEA lacked the jurisdiction to overturn DMH’s final eligibility decision, the Hearing Officer did not deem DMH a necessary party. We agree with the Hearing Officer’s well‑reasoned, thorough rulings.

In Middleborough, the district also filed two joinder motions, one to join DCF and another to join the Department of Developmental Services (“DDS”). Compared to Falmouth, the joinder inquiries in this case were much less complex. In short, the Hearing Officer easily determined that DDS was a necessary party to the case, given that the student was a current DDS client who was receiving DDS services. Almost as easily, the Hearing Officer determined that DCF was not a necessary party to the case, given that the student was not (and never had been) a client of DCF. The district tried to make great hay of the fact that DCF had partially funded the student’s previous placement, resulting from an interim policy promulgated by the Executive Office of Health and Human Services. The Hearing Officer remained unpersuaded, as that policy constituted a financial arrangement between Massachusetts agencies, never obligated DCF to provide any services to the student, and had otherwise expired when the student’s previous placement ended.

Parent not entitled to a “redo” of her prior case

Montachusett Regional Vocational Technical School, BSEA #1907993, 25 MSER 57 (Figueroa, 4/17/19) is a lesson in every first‑year law student’s favorite subject—civil procedure. In this case, the parent sought access to her son’s student records, a claim that she had previously litigated (and lost) in an earlier BSEA case against Montachusett because she did not have physical or legal custody of her son.

Montachusett filed a motion to dismiss the parent’s hearing request, contending that the parent failed to raise any new allegations in her new case. Perhaps a dead giveaway, the parent relied on her old filings and exhibit binder to support her new case. Further, since the time that the parent’s previous case had been decided, the student had turned eighteen, retaining educational decision‑making authority for himself, and an Abuse Prevention Order had entered, prohibiting the parent from contacting her son, all of which raised additional red flags for the viability of the parent’s case.

The Hearing Officer granted the district’s motion to dismiss, based on the principles of res judicata (claim preclusion) and collateral estoppel (issue preclusion). Although these procedural concepts are similar, they apply to slightly different circumstances.

Res judicata bars a subsequent legal action where there has been: “(1) a final judgment on the merits in an earlier case; (2) sufficient identicality between the causes of action asserted in the earlier and later cases; and (3) sufficient identicality between the parties in the two suits.” 25 MSER at 60 (internal quotations and citations omitted). Collateral estoppel “precludes relitigation between the same parties of issues of fact or law necessary to a judgment which issues and claims have already been subject to a determination.” Id.

In the instant case, the parent’s attempt to redo her previous case was barred by both res judicata and collateral estoppel, as her claim (a violation of the IDEA and student records laws) and the related issues of fact and law (the parent’s participation in the IEP Team process and the applicable custody arrangement) had already been litigated. The parent, however, was not without any relief. She was entitled to appeal the prior decision to federal or state court within ninety days, but instead attempted to re‑litigate the case at the administrative level.

Parent’s right to an independent educational evaluation contingent on parental consent to school‑based evaluation

The IDEA and its Massachusetts counterpart afford parents a right to obtain an independent educational evaluation (“IEE”) at public expense under certain circumstances. In Middleton Public Schools and Cole, BSEA #1909931, 25 MSER 86 (Reichbach, 5/24/19), the district filed for a hearing seeking an order that the parent was not entitled to public funding for an IEE unless and until the parent provided consent for, and the district completed, the student’s triennial school‑based evaluation. The Hearing Officer agreed with the district, granting its Motion for Summary Judgment.

As a general rule, “[a] parent is only entitled to one IEE at public expense each time the public agency conducts an evaluation with which the parent disagrees.” 25 MSER at 88. Thus, a school‑based evaluation gives rise to the parent’s right to an IEE, and it does not, as the parent in Middleton seemed to believe, exist independently. The uncontroverted evidence demonstrated that the parent had refused consent for a school‑based evaluation, and without a school‑based evaluation, she had no right to an IEE. The Hearing Officer conducted a sound analysis of the rule; unfortunately, as applied, the rule all but ensures that the district always has the first bite at the apple, so to speak, unless the parent can afford to obtain an independent evaluation of their child (often at significant expense).

No denial of FAPE where parent precluded from chaperoning field trip

For parents who have children with life‑threatening allergies, Mendon‑Upton Regional School District and Nina, BSEA #1907157, 25 MSER 61 (Reichbach, 5/6/19) delineates when they may and may not chaperone their child’s field trip. In Mendon‑Upton, the parents filed a Motion to Allow Parent to Chaperone Field Trip, within the context of a case centered on a first‑grade student with a severe nut allergy. Due to her allergy, the student required access to an EpiPen at all times and administration by a trained adult within seconds of an allergic reaction.

The student in this case was on a Section 504 Plan (“504 Plan”). A previous iteration of the 504 Plan enabled the parents to attend any field trip with the student. The student’s operative 504 Plan, however, enabled the parents to attend field trips only when other parent chaperones were also invited. When the parents were denied the opportunity to chaperone a particular field trip that no other parents were invited to attend, they brought the instant motion, alleging a denial of their right to participate in their child’s education, a denial of the student’s right to a FAPE, and retaliation based on the parents’ challenging the student’s 504 Plan. In response, Mendon‑Upton developed a Field Trip Safety Plan for the student, which provided for the school nurse’s attendance, outlined the steps to be taken before and on the day of the field trip, and detailed emergency responses and contingencies. The district also represented that, in addition to the school nurse, two teachers willing and able to administer the student’s EpiPen would be attending the field trip.

To support their motion, the parents pointed to guidance from both the Center for Disease Control (“CDC”) and the Department for Elementary and Secondary Education (“DESE”), which establish that it is “best practice” for parents of children with food allergies to chaperone field trips. 25 MSER at 63. Best practices are not tantamount to required practices, however. Notably, the CDC and DESE also contemplate that a nurse and/or other trained individual can properly ensure the student’s welfare in a parent’s absence. Satisfied with the district’s comprehensive safety plan, the Hearing Officer denied the parents’ motion for several reasons. First, the Hearing Officer determined that the parents did not have a fundamental right to chaperone the student’s filed trip, especially when no other parents had been invited to attend. Second, the Hearing Officer determined that, because the student would have immediate access to her EpiPen through three different trained individuals, her ability to participate in the field trip was not curtailed. Third, the Hearing Officer did not find that the district had retaliated against the parents, as the record showed that in the past fifteen years, parents were never allowed to attend that particular field trip.

Even though the parents did not ultimately prevail, their motion compelled the district to draft the safety plan. Without the pressure of litigation, it is unclear whether, and to what extent, the district would have been willing to address the parents’ very real concerns about the student’s health and safety. Although the school did satisfy the Hearing Officer that the student would be safe on the field trip, to an outside observer it would seem that the more collaborative, efficient, and cheaper approach would have been to let the parents of a young child with life‑threatening allergies chaperone the field trip.

Motions Abound Part 1: Pembroke

This quarter, the BSEA issued two separate rulings in Pembroke Public Schools, BSEA #191125, 25 MSER 110 (Figueroa, 6/21/19), 25 MSER 117 (Figueroa, 6/27/19). The parent, represented by a lay advocate, filed numerous motions, most of which were unsuccessful. It was not all for naught, however, as the parent succeeded in dismissing a portion of the district’s request for hearing. We focus this comment on the parent’s success.

In its hearing request, Pembroke sought a determination that the proposed IEP for the student, an eighteen‑year‑old attending a residential placement at the Evergreen Center (“Evergreen”), offered the student a FAPE. Pembroke also sought substituted consent for the implementation of the proposed IEP at Evergreen, a portion of which the parent had rejected while simultaneously accepting the placement. The parent moved to dismiss Pembroke’s claims.

In evaluating a motion to dismiss, a hearing officer considers whether the non‑moving party’s (here, Pembroke’s) factual allegations plausibly suggest that it is entitled to relief. The parent argued that since the IDEA does not provide for substituted consent for the implementation of an IEP, Pembroke could not show that it was entitled to relief. The Hearing Officer agreed. Citing 603 CMR 28.07(1)(b), the Hearing Officer reasoned that the concept of substituted consent, which allows the BSEA to override a parent’s lack of consent in certain circumstances, applies only for re‑evaluations and placements—not for the implementation of IEPs or the provision of services. Thus, the Hearing Officer granted the parent’s Motion to Dismiss Pembroke’s claim regarding substituted consent. The district’s FAPE claim, which fell squarely within the BSEA’s jurisdiction, survived.

The Hearing Officer also considered a variety of other requests and motions by the parent, and we need not discuss them all. We do note that the Hearing Officer denied the advocate’s request to appear at the hearing by phone, instead ordering her to appear in person. Take a look at the ruling for an interesting analysis about the powers and responsibilities of a BSEA hearing officer.

Motions Abound Part 2: Whitman‑Hanson

Similar to Pembroke, Whitman‑Hanson Regional School District and Mark, BSEA #1908079, 25 MSER 83 (Reichbach, 5/21/19), 25 MSER 107 (Reichbach, 6/11/19) involved two separate rulings by the Hearing Officer on the parent’s numerous motions, one of which was a motion to dismiss the district’s hearing request. In fact, the parent’s motion was her third attempt to dismiss the district’s case, all of which were unsuccessful.

Here, the district filed a hearing request seeking an order that its proposed IEP designating an out‑of‑district program for the student provided him with a FAPE. The parent contended that since she subsequently accepted the IEP and placement, there was no longer a dispute. Despite the signed IEP, however, the student remained without a placement, as the district alleged that the parent had not yet engaged in the referral process, including signing consents to enable the district to send out packets to potential schools. Taking those allegations as true, as a factfinder is required to do when assessing a motion to dismiss, the Hearing Officer determined that the district had shown that it was plausibly entitled to relief.

Following the denial of her third Motion to Dismiss (and other miscellaneous motions), the parent next filed a Motion to Recuse, requesting that the Hearing Officer remove herself from the case due to an alleged bias in favor of Whitman‑Hanson. Concluding that her previous rulings were supported by relevant legal standards and the law, the Hearing Officer denied the parent’s Motion to Recuse.

As a final note, the last ruling this quarter, Easthampton Public Schools, BSEA #1904761, 25 MSER 43 (Figueroa, 3/26/19) also involved a parent’s Motion for Recusal. There, the parent, who spoke Spanish and required translation of oral and written language, alleged that she felt disrespected by the Hearing Officer due to her failure to accommodate the parent’s communication needs. Nevertheless, it appears that the Hearing Officer went to great lengths to accommodate the parent’s needs, offering interpretation at every proceeding/event and regularly checking in with the parent to confirm her understanding of what was occurring. Satisfied that there was no showing of actual prejudice or even the appearance of prejudice, the Hearing Officer denied the parent’s motion.

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