INTRODUCTION

During the third quarter of 2015, the BSEA issued decisions in only four cases, but there were also fourteen rulings covering a wide variety of issues.  Only one of the decisions (Brookline) involved the most common type of placement dispute about whether the district’s program was appropriate. The parents succeeded in proving that the district’s program was not appropriate for their daughter, and the case is very instructive in showing the complexity of the issues in determining progress and lack of progress for children with autism and intellectual disability. In the other placement case (West Boylston), the parents took the highly unusual step of rejecting the district’s offer of a placement at the Landmark School after the student completed the Carroll School. The parents unsuccessfully sought public funding for a regular college prep boarding school. The other decisions involved extended school year programming (Mansfield) and the services that a district was required to provide to a student while he was psychiatrically hospitalized (Oxford).

Seven of the fourteen rulings involved attempts by school districts to have the parents’ claims dismissed without a hearing. Two of the rulings show why it is so important to take great care in negotiating settlement agreements—in Revere and Weymouth, parents were precluded from bringing claims that had been the subject of previous written agreements. In another case (Ludlow) the hearing officer threw out some of the claims because of the two-year statute of limitations.  The effect of an OCR investigation was the subject of a motion in Tantasqua.

Two rulings (Touchstone and Quincy) involved relatively routine discovery disputes but resulted in the issuance of protective orders which these commentators feel were too restrictive of the parents’ rights to examine documents related to the student’s peers.   Two rulings (Boston and Brockton) reaffirmed that during the pendency of a dispute over placement, the principle of stay- put means that the student stays in the current placement. As usual from the BSEA, some very interesting issues.

Parents Win Out-of-District Placement[1]

The most common placement dispute between parents and school districts occurs when the parents contend that the district’s program does not provide a FAPE for the student and the parents want the school district to pay for a private school that would provide what the student requires to make meaningful progress. There was only one of these “classic” placement disputes about a school year placement in the third quarter. At the time of the BSEA hearing in Brookline Public Schools and Jacqueline, BSEA #1408578, 21 MSER 138 (Reichbach, July 13, 2015), Jacqueline[2] was a nine and a half year old girl on the autism spectrum who had been more recently diagnosed with an intellectual disability as well. She was non-verbal and used an augmentative communication device. The parents contended that Jacqueline’s program—the Adaptive Learning Center classroom at the Lincoln School in Brookline, a substantially separate program that she had attended since kindergarten—was not reasonably calculated to allow Jacqueline to make meaningful educational progress. The parents filed a hearing request seeking an order that the Realizing Children’s Strengths Learning Center (RCS) was the placement that Jacqueline needed to make meaningful progress.

The parents had the burden of proof in this case, as they do in most cases, and it is useful to review what parents must prove in order for the BSEA to order an out-of-district placement. Parents need the BSEA to find that (1) the district’s proposed program is inappropriate; (2) there is nothing that the district can do to make its proposed program appropriate; and (3) the parents’ proposed program is appropriate. To prove the first element—the appropriateness of the district’s proposed program—the parents had to prove that Jacqueline had the potential to make meaningful progress despite her autism and intellectual disability. That issue involved a discussion of Jacqueline’s cognitive potential, the areas in which she did or did not make meaningful progress in Brookline’s program, and the appropriateness of the student’s peers. Each of these areas was hotly contested, with multiple experts testifying for both parties.

Both parties agreed that Jacqueline had made progress in some areas, such as the use of her augmentative communication device and in feeding herself, but the parents’ experts (Dr. Lisa Nowinski and Gretchen Timmel) testified that based on her cognitive potential, Jacqueline should have been making more progress in several key areas. Brookline argued that Jacqueline’s cognitive potential was lower and that the progress she had made was therefore “meaningful.” The hearing officer found Dr. Nowinski’s higher estimate of Jacqueline’s cognitive abilities more credible than the opinion of the district’s witness (Dr. Naami Turk), largely due to the experience that Dr. Nowinski had in testing and working with children with autism and intellectual disabilities. The parents were ultimately successful in proving that Jacqueline had not made meaningful progress in Brookline’s program due to her autism in the areas of adaptive skills, receptive language, skills, working memory, visual attention, social responsiveness, and behavior. Given the progress Jacqueline had made with her cognitive skills, the hearing officer agreed with Dr. Nowinski that Jacqueline should have been making more progress in other areas as well.

The parents were also successful in proving that Jacqueline’s lack of meaningful progress was the result of several key inadequacies of Brookline’s program and that the RCS program was adequate in those same areas. The first deficiency in the Brookline program that the experts said prevented Jacqueline from making meaningful progress in the areas described above was the peer group. There were three other students in Jacqueline’s class, though one was not there much of the time. All three students were male. None had autism, and none needed BCBA consultation. The two boys who were with Jacqueline most often were verbal and had more advanced social skills than Jacqueline. None of these other students used communication devices, which meant that Jacqueline did not have the opportunity to learn from modeling. There was testimony that at RCS there would be three students in Jacqueline’s peer group: all had autism, two had a co-existing global developmental delay, one had an intellectual disability, and all used assistive technology to communicate. In addition, RCS would provide Jacqueline the opportunity to communicate with fourteen other students outside of her peer group who used augmentative communication devices.

Dr. Nowinski and Ms. Timmel had observed Jacqueline in her Brookline program on several occasions over the years. Both experts were therefore convincing in their arguments that because Brookline’s current program did not adhere strictly enough to the principles of Applied Behavior Analysis (ABA), the program did not consistently foster Jacqueline’s spontaneous and appropriate communication attempts or provide support to improve her foundational language skills. Dr. Nowinski testified that “sprinklings of ABA are not sufficient for Jacqueline, and that instead she needs an intensive, systematic, full-time, year-round ABA program with consistency in staff, with consistency in programming throughout her day, throughout her year.” Id. at 150. Testimony showed that the RCS program, in contrast, was able to provide such support and staff and was a full-year program (no more than a one week break at any time). In addition, incidental teaching occurred throughout the day at RCS—walking through the hallway, at lunch or recess—rather than in isolation.

The third deficiency in the Brookline program, according to the parents’ experts and accepted by the hearing officer, was that the Brookline staff was not highly trained in ABA. During her observation in February 2015, Dr. Nowinski found that Jacqueline’s teachers were attentive and cared about Jacqueline, but they did not provide the most effective instruction. For example, Dr. Nowinski observed that while the teacher was doing discrete trials with Jacqueline, the teacher tried to redirect Jacqueline rather than appropriately reinforce her spontaneous communication, which Dr. Nowinski noted was not the correct way to use this technique. In addition, the teacher continued with the same tasks after Jacqueline already mastered them. Ms. Timmel noted in each of her four observations over a two-year period that Jacqueline’s performance during discrete trials was variable. In contrast, testimony showed that all RCS staff were educated and trained in principles of ABA to a greater degree than Brookline’s staff.

Parents’ experts testified that Jacqueline needed a very intensive systematic program to address her autism-related learning needs and that the program needed to be built on ABA principles. The hearing officer agreed and ordered Brookline to provide for placement at RCS.

Comment: Measuring the progress of a non-verbal autistic child who also has an intellectual disability is not an easy task. In this case, the parents’ had highly qualified experts who knew the student very well, did multiple evaluations and observations, and were able to explain to the hearing officer in what ways the student was not making meaningful progress and what would be needed to improve the progress. The result is a sophisticated analysis by the hearing officer explaining how not adhering strictly enough to ABA principles resulted in the denial of a FAPE for this particular student. The interplay between autism, intellectual disability, progress in some areas but not in others, peer dynamics, and teaching methodology made this case extraordinarily complex and, without clear expert testimony and sophisticated analysis by the hearing officer, could have turned out another way.

Parents Reject Offer of Landmark Placement and Seek Reimbursement for Non-Approved Private School

Hearing Officer Raymond Oliver begins his analysis in West Boylston Public Schools and Curt, BSEA # 1508235, 21 MSER 168 (Oliver, Aug. 25, 2015), by noting that “[t]his is a most unusual case.” Id. at 171. While it is not unusual that the parents and the school district agreed on Curt’s profile and the special education services that he needed to address his reading and other language-based disabilities, in this case they also agreed that after Curt graduated from the Carroll School, which ends in the ninth grade, the Landmark School would be an appropriate placement for Curt to continue getting the type of services that he had been receiving at Carroll for the past five years. In the last four of those years, the West Boylston school district had designated Carroll as the placement in Curt’s IEP. Most parents would be thrilled if their school district agreed to fund a placement at Landmark after Carroll, but Curt’s parents decided that Landmark, in Beverly, would be too long a commute for Curt from West Boylston. When Curt’s parents raised the concern about the distance, West Boylston even offered to fund a residential placement for Curt at Landmark. When Curt’s parents said they did not want Curt to be a residential student, the district offered to try to locate a day placement closer to home or even to create a program for Curt at the local high school. However, Curt’s parents unilaterally placed Curt as a day student at the Winchendon School and requested West Boylston to fund that day placement. Winchendon is a college prep school that is not a special education school and does not provide or implement IEPs, but has some support services and small classes. The parents’ argument at the hearing was the following: 1) although the program at Landmark is completely appropriate for Curt, the distance makes Landmark not appropriate; and 2) placing Curt residentially at Landmark would not be appropriate because he does not require a residential placement to meet his educational needs and therefore a residential placement would be overly restrictive (this is an argument often made by school districts, not by parents); and 3) the Winchendon School, even though not an approved special education school, is appropriate for Curt.

When so many BSEA cases involve parents trying to force school districts to place a reading disabled student at Landmark, the parents in this case, who were objecting to such a placement while agreeing that the Landmark program was perfectly appropriate, were pretty much doomed from the start. First of all, although they did not consent to the Landmark placement specified in the proposed IEP, they accepted in full the content of the proposed IEP. All of Curt’s services were listed in Grid C of the IEP; thus the parents fully accepted that Curt required all of his services outside of any mainstream class. Carroll and Landmark fit this criteria; Winchendon does not. The hearing officer quoted an email from the Winchendon admissions director, which stated that “Winchendon is a mainstream school. We can’t begin to be compared to Landmark in terms of program, support, teacher training and philosophy. We apparently don’t qualify as a 766 school for good reason.” Id. In other words, Winchendon could not possibly implement Curt’s IEP, which required that all his specialized instruction be outside of a mainstream classroom and which the parents had accepted in full. Thus, although it is well-established that parents can be entitled to reimbursement of private school tuition in a non-approved private school if they prove that the district’s proposed placement is not appropriate, see Florence County School District Four v. Carter, 510 U.S. 7 (1993), the hearing officer noted the “clarification” by the First Circuit, which stated that “the reasonableness of the private placement necessarily depends on the nexus between the special education required and the special education provided.” Mr. I. v. Maine Sch. Admin. Dist. No. 55, 480 F.3d 1, 25 (1st Cir. 2007). Everyone agreed that Landmark provided that nexus. Winchendon, by its own admission, did not.

As for the issue of the distance from West Boylston to Landmark, the hearing officer acknowledged that 603 CMR 28.06(8)(a) provides that “The district shall not permit any eligible student to be transported in a manner that requires the student to remain in the vehicle for more than one hour each way except with the approval of the Team. The team shall document such determination on the IEP.” (Emphasis by the hearing officer).

As the hearing officer pointed out, this regulation “is not an absolute bar to transporting a student more than one hour each way but rather allows a waiver of such time limit by the Team.” The parents could have allowed the district to transport Curt to Landmark where he would have received a FAPE, but they chose not to waive the one-hour limitation. Furthermore, they could have accepted the offer of a residential placement at Landmark. The hearing officer noted that hearing officers “not infrequently” order public schools to reimburse parents for unilateral residential placements when the residential component is only for geographical reasons. Id. at 172.

Finally, the hearing officer noted, “Parents could have accepted WBPS’ proposal on an in-district program which would have offered a significant amount of special education services, yet they opted not to, in favor a program that provided him none. I cannot order WBPS to fund a private, general education preparatory school that does not address Curt’s special education needs simply because it is closer to his home and makes it easier for him to pursue gymnastics when WBPS has offered either a day or residential special education program which would clearly provide Curt FAPE.” Id.

Comment: This was indeed an unusual case, because the parents rejected a placement at one of the most sought-after private schools for students with reading and language-based disabilities, and instead sought reimbursement for a non-approved school that did not provide the services that the parents had agreed were necessary for their child. It is important to remember that parents can get reimbursed for tuition at non-approved private schools, but only if they prove 1) that the program proposed by the district is not appropriate; and 2) that the unapproved private school does provide at least some of the special education services that the student requires. Here the parents lost on both grounds. Their argument was probably made even more difficult by their acceptance in full of all the services specified in the proposed IEP. For parents seeking reimbursement for an unapproved private school, it is probably better strategy to reject the IEP as well as the placement because then the parents would not have to prove that the private school provides every service specified in the IEP.

Dispute over Placement for Summer Program (ESY)

School districts must provide extended school year (ESY) services if the IEP Team determines that extended year services are necessary for the child to receive a FAPE. 34 CFR 300.106(a)(2). The United States Department of Education has approved the “regression and recoupment” standard used by Massachusetts and other states to determine if a child needs extended year services to receive a FAPE. That standard calls for ESY services “if the student has demonstrated or is likely to demonstrate substantial regression in his or her learning skills and/or substantial difficulty in relearning such skills if an extended program is not provided.” 603 CMR 28.05(4)(d)(a).

While some of the disputes between parents and districts are about whether or not the child requires ESY services, in Mansfield Public Schools, BSEA #1507326, 21 MSER 157 (Berman, July 28, 2015), the district and the parent agreed that this rising fourth grader on the autism spectrum needed ESY services. However, the parent claimed that the services and placement proposed by Mansfield for the summer were not appropriate for the student. The student’s autism caused social anxiety, sensory regulation difficulties and physical symptoms such as tics and hand-flapping. Despite her cognitive and academic strengths, the student had significant social/emotional struggles and difficulties with transitions. She regressed significantly in her academic, speech/language, OT, and social/behavioral functioning after even short school breaks such as long weekends.

The district felt it was important for the student to attend the Mansfield summer program to build social relationships with peers with whom she would be associated during the school year. The parent wanted Mansfield to fund ESY services at Camp Discover, part of the Bridge Center in Bridgewater. The parent maintained that Camp Discover would address student’s sensory and social skills needs as well as her behavioral plan and related goals in her IEP.

The parent and the district agreed to let the hearing officer decide the case on submitted documents and a written memorandum/summary, without testimony or a formal hearing. Although the hearing officer (Sara Berman) found that the content of Mansfield’s proposed ESY program was appropriate, she found that the proposed program did not provide a FAPE because it was only five weeks long. Since this was a deficit that could easily be remedied, the hearing officer ordered Mansfield either to extend its ESY program for an additional two weeks or locate or create two-week program that would provide adequate social/emotional and behavioral support for the student. The hearing officer also found that Mansfield needed to clarify certain details of the program, including providing the parent with a detailed schedule explaining the “overlap” of the ESY program with the Summer of Champs Institute and clarifying that the shared paraprofessional would accompany the student at the Summer of Champs Institute. With those changes, the hearing officer found that Mansfield’s ESY program would be appropriate. Therefore, she did not even reach the issue of whether the parent’s proposed program at Camp Discover was appropriate.

Comment: As we have commented before, it is difficult to prevail in a dispute over the appropriateness of a program without live testimony from the parent’s experts. Especially in a case like this, where the issues are somewhat subtle, it is important for the parent’s expert to explain to the hearing officer why any proposed modifications to the district’s program would not be sufficient.

Services Specified in an Accepted IEP Must be Implemented even if the Student is not in the Specified Placement

In Oxford Public Schools, BSEA #1506886, 21 MSER 211 (Berman, Sept. 8, 2015), the parent alleged that the district had denied her son a FAPE by failing to implement an accepted IEP while the student was in hospitals and at Three Rivers, a residential facility funded by the Department of Mental Health (“DMH”), and by delaying the process of referring the student to a residential placement. The parent also alleged that Oxford’s actions were retaliatory in nature.

The student had been found eligible for special education only after the parent had filed a previous hearing request in October 2014. He had received DMH services in the past but his mother had withdrawn her consent for DMH services at some unspecified time prior to the hearing. The student, who was ten years old at the time of the hearing, had been psychiatrically hospitalized numerous times and had spent over a year at Three Rivers, in part because he had no placement to transition into until the district completed the referral process to The Learning Clinic in Connecticut (“TLC”), an agreed-upon residential placement. During the referral process, which began in November 2014 but had not progressed sufficiently for the student to spend a trial day there until February 2015, Oxford initially assured TLC that it would fund the entire placement and then (just after the parent had indicated that she wanted TLC as a placement) indicated that it would not fund TLC without assistance from DMH. Oxford seemed to threaten TLC staff with involvement in litigation unless TLC stopped “working with the parent behind the district’s back,” but finally agreed to fund the entire residential placement. (The district unsuccessfully attempted to have DMH joined to the proceeding at the BSEA.) Meanwhile, the student remained at Three Rivers and his behavior was regressing. The student finally began attending TLC for a thirty-day trial placement in May 2015 but was discharged from the program midway through the trial due to severe emotional difficulties. At the time of the hearing, the student was living at home with his mother and was not receiving any educational services, but the parties agreed that the student required placement in a therapeutic residential program.

The district did not dispute that it had not implemented the student’s accepted IEP during the period between November 25, 2014 and early April 2015, when the student was psychiatrically hospitalized and placed at Three Rivers. At Three Rivers, the student had access to academic instruction from special education teachers, counseling, behavioral support, and some occupational therapy as part of the Three Rivers program. However, these services were generally available to all students and were not delivered pursuant to student’s IEP. The hearing officer held the district liable for compensatory services for failure to implement the student’s IEP, as expected, but she also clarified that the student was entitled to make up all missed hours of service despite having received some similar services from Three Rivers. She stated, “the Three Rivers in-house services could have been substituted for the IEP services only via a Team meeting and amended IEP accepted by Parent.” Id. at 216. The hearing officer’s statement provides a useful reminder that a student may still be entitled to compensatory services for a period when he received some special education and/or related services if those services were not provided pursuant to an accepted IEP.

The hearing officer did not find that the delay in referring the student to a residential placement constituted a denial of FAPE despite the testimony of a psychologist who stated that the delay in placement, combined with the absence of IEP services, increased the student’s anxiety and PTSD symptoms and contributed to the student’s inability to complete his trial placement at TLC.

The parent claimed that Oxford had retaliated against her for her advocacy efforts on behalf of the student and the student’s brother. The parent cited Oxford’s failure to find the student eligible for special education until after the parent had filed for a hearing, Oxford’s emails to TLC that seemed to cast doubt on Oxford’s commitment to fund the placement immediately after the parent indicated that she wanted TLC as a placement, and Oxford’s attempts to involve DMH despite the parent’s withdrawal of consent for DMH services. Oxford first argued that the BSEA lacked jurisdiction over the retaliation claim. The hearing officer did not address the jurisdictional argument. Oxford then argued that the parent had failed to present a prima facie case for retaliation, which requires a showing that parent had engaged in protected activities, that Oxford was aware of these activities, that Oxford took adverse action against the student and/or parent, and that the adverse action was caused and motivated by the protected activities. Oxford stipulated that the parent had engaged in protected activities of which Oxford was aware, and the hearing officer stated that causation could be inferred in this case. The question, then, was whether Oxford had taken “adverse action.” The hearing officer found that the parent had not established any “adverse action,” but rather that several players (Oxford, Three Rivers, TLC, and the parent, among others) had “different rules of operation” and were attempting to serve a complex student. She cited “miscommunications” and “misunderstandings” among all parties but held that no retaliation had occurred. Id. at 216-17.

Comment: It is not clear to us whether the parent’s retaliation claim should have succeeded. However, it is troubling that the significant delay in completing the referral process, a delay that was clearly due in part to Oxford’s non-committal and possibly threatening answers to TLC’s questions about who would fund the placement, was not held to be a separate and distinct denial of FAPE. This student was forced to remain at Three Rivers after he was ready for discharge, and his behavior deteriorated. By the time he started his 30-day trial period at the placement, he was so emotionally unstable that he was discharged from what was otherwise an agreed-upon placement. It is not clear whether the student received any special education services between his discharge from TLC on May 27, 2015 and the decision’s issuance on September 8, 2015, where, as of the hearing dates in June 2015, he was living at home with his mother and receiving no services. In the decision, the hearing officer ordered the parties to meet immediately as a Team to find the student a new placement but without an interim order to that effect, it is possible that this very fragile student received no special education services for over three months.

Stay Put Rulings

Two stay-put rulings by Hearing Officer Rosa Figueroa are included in this quarter’s Commentary. The stay-put ruling in Boston Public Schools, BSEA #1503083, 21 MSER 198 (Figueroa, Jan. 13, 2015),[3] followed shortly after Hearing Officer Figueroa agreed with Boston that the Horace Mann School was an appropriate placement for the student, who was attending the READS Collaborative at that time. BSEA #1401653. Parent appealed the BSEA placement decision to the United States District Court and requested that, pending that appeal, the student be allowed to remain at READS. The hearing officer rejected Boston’s argument that because of the hearing officer’s decision, the stay-put placement became the Horace Mann School. The hearing officer pointed out that “the purpose of Stay-put is to preserve the status quo so as not to disturb a student’s placement unnecessarily where there is no meeting of the minds between the parties.” Id. at 198. Citing the Massachusetts regulation 603 CMR 28.08 (7) that states that during the pendency of any dispute regarding placement or services, the student “shall remain in his or her then current educational program and placement unless the parents and the school district agree otherwise,” the hearing officer ruled that the READS Collaborative was the student’s stay-put placement during the appeal to the federal court.

In Brockton Public Schools, BSEA #1601536, 21 MSER 207 (Figueroa, Sept. 4, 2015), the student was in eighth grade at the Italian Home for Children pursuant to an IEP. In the spring of that year, the Team wrote a new IEP that proposed ninth grade placement at the Goddard Public Day School in Brockton. In April, the parent fully accepted the new IEP and placement, but then in June the parent rejected the placement at the Goddard School. The district made the rather bizarre argument that because the parent accepted the placement before rejecting it 10 weeks later, and even though the student had never attended that placement, Goddard was the “last accepted” placement and was thus the stay-put placement pending the BSEA hearing to determine whether it was appropriate. Hearing Officer Figueroa again pointed out that the purpose of stay put is to maintain the status quo by not unnecessarily disturbing the student’s educational life during the pendency of an IDEA proceeding. Thus, since the placement that had been accepted on paper for 10 weeks and then rejected had never been implemented, the stay-put placement during the pendency of the dispute was where the student was actually attending, in this case the Italian Home for Children.

Discovery Rulings

In Touchstone Public Schools and Xalvador, BSEA #1507990, 21 MSER 137 (Byrne, July 3, 2015), the parties brought a discovery dispute to the hearing officer. The district was refusing to produce redacted IEPs that the parent sought and the parent was refusing to produce documents in his possession and/or provide appropriate releases so that the school could obtain information concerning the student’s involvement with the Department of Children and Families (“DCF”), the Department of Developmental Services (“DDS”), and Massachusetts General Hospital (“MGH”).

The parent was not opposed to the release of information regarding the student himself but rather sought to limit the disclosure of information about other family members contained in the documents from DCF, DDS, and MGH. The hearing officer held that such concerns could be addressed through “appropriately drafted releases” and “careful redaction,” reminding both parties that “information about family members other than Xalvador is not relevant to the claims of either party to this appeal.” Id. at 137.

The district argued that it could not be ordered to produce redacted IEPs or behavior plans for other students because they contained sensitive, personally identifiable information and were protected by the Family Educational Rights and Privacy Act (“FERPA”). The parent argued that when other students’ personally identifiable information was redacted, their disclosure did not violate those students’ privacy rights. The district further argued that the requested information about the student’s peers was not relevant, despite the parent’s assertion that the proposed peer grouping was one of the reasons that the IEP was not appropriate. The dispute over privacy rights and the relevance of peer IEPs is, as Hearing Officer Byrne reminds us, “the subject of a consistent line or Orders and Rulings at the BSEA.” See id. Hearing Officer Byrne ordered the district to redact and release the requested information, subject to a protective order that we discuss below.

Hearing Officer Byrne made a discovery ruling in another case, Quincy Public Schools and Zebulon, BSEA #1600059, 21 MSER 206 (Sept. 2, 2015). This case was a dispute over two out-of-district placements, the May Center (Quincy’s choice) and Nashoba Learning Group (the parents’ choice). The parents argued that Quincy had proposed placement at the May Center not because it was appropriate for the student but rather because it would cost the district less to send him there, and that Nashoba was better suited to meet the student’s needs. The parents sought information about the student’s proposed peers at the May Center as well as about Quincy’s financial relationship with the May Center in an effort to explore the inappropriateness of the placement and the potential bias involved in its selection. The district argued that it should not be ordered to provide this information, again due to the perceived irrelevance of the information. Hearing Officer Byrne again ordered disclosure, reminding the parties of the broad standard for discoverability and the due process system’s goal to make special education transparent and afford equal access to information about the student and services. She stated, “Information that is, or may be, relevant to any aspect of a student’s appeal, no matter how tangential it may seem to be at the time of the request, should be shared absent a reasonable showing of privilege, harassment, intrusiveness, or unequivocal irrelevance.” Id. at 206.

The hearing officer ordered the school district to release the documents subject to several conditions. Two of the conditions were unproblematic—all identifying information had to be redacted (the parent had asked for redacted IEPs in the first place) and the parents were allowed to submit the documents as exhibits at hearing. However, two of the conditions are quite troubling. First, as in previous cases (see e.g., Wellesley Pub. Schools & Vic, BSEA #1503712, 21 MSER 39 (Oliver, Feb. 26, 2015)) the redacted documents would be provided to parents’ counsel but counsel could not share them with their clients, the parents. We have questioned this condition in previous commentary, and although the rationale for this limitation has never been explained, it is presumably based upon the idea that even with personally identifiable information redacted, a parent would likely recognize the peers in his or her child’s class. However, we note that restricting parents from looking at documents is problematic for several reasons. First, both federal and state law permit parents to represent themselves (proceed “pro bono”) at administrative hearings. Are pro bono parents not entitled to receive peer IEPs by virtue of their status as parents? Such a result would be quite unfair. Second, restricting one’s client from seeing key evidence in a case is to deny that client the right to participate in preparing and prosecuting their case, which implicates the rules of professional conduct as well as due process. Finally, preventing parents from seeing the evidence in their case is at odds with a parent’s right to participate in their litigation and in decision-making regarding their child’s programming.

The second significant and troubling condition that Hearing Officer Byrne articulated was that while counsel could show the IEPs and other peer information to the experts who would or may be assisting parents at hearing, the parents’ attorney had to be present during the expert’s review of the documents. To our knowledge, this condition has not been ordered in any of the “consistent line of Orders and Rulings at the BSEA”; nor are we aware that any such limitation has been imposed in any civil litigation. In civil litigation involving sensitive information such as trade secrets, experts are required to sign the same confidentiality agreements concerning documents that the attorneys and parties sign and are prohibited from making copies and must return the documents at the end of the litigation. We are unaware of any misconduct on the part of expert witnesses such that it is necessary for an attorney to sit there while the expert reviews the documents. More troubling is the immense financial burden that this condition places on parents. Not only must they pay for the expert’s time spent reviewing the documents, but they also must pay for the lawyer’s time to sit with the expert during his or her review (which may be lengthy or span multiple sessions, depending on the number of documents being reviewed), as well as for travel time for one or both individuals.

While we understand that some form of protective order is appropriate to safeguard the privacy of uninvolved students and student records, adding conditions to such an order that unnecessarily increase the financial burden on parents and possibly shut them out of the process of assessing the evidence greatly disadvantages parents, especially unrepresented parents, and in our opinion cannot be seen as consistent with the letter or spirit of special education law.

Comment: Despite the consistent line of BSEA rulings ordering districts to produce information about a student’s peers, school districts and their attorneys continue to argue that they should not be compelled to release such information. One wonders why districts continue to spend time and resources when, decision after decision, the precedent is affirmed. However, as stated above, we have serious questions about the protective orders covering the released information that Hearing Officer Byrne issued in both Quincy and Touchstone. These protective orders raise due process concerns and make the discovery process much more expensive for parents.

Motions to Dismiss

Seven rulings this quarter were the result of districts filing motions to dismiss the hearing requests that parents had filed. When filed by a district, a motion to dismiss tests the legal sufficiency of the claims that the parents have asserted. In such a situation, the hearing officer may allow a motion to dismiss (thereby ending the litigation in whole or in part) if it is determined that the parents have failed to state a claim on which relief can be granted. In considering a motion to dismiss, a hearing officer must consider as true all facts alleged by the parents and may not dismiss the case if those facts, if proven, would entitle the parents to relief that the BSEA has the authority to grant. The seven motions to dismiss from this quarter can be divided into two groups: Four rulings (Tantasqua, Revere, Weymouth, and Ludlow) addressed whether the parents were entitled to bring their claims in the first place, or whether the claims were precluded by previous action. Three rulings (Lowell, Boston, and Lincoln-Sudbury) represented district attempts to end the litigation or to narrow the issues in dispute before hearings.

Many of the issues raised in Tantasqua Regional School District, BSEA #1509595, 21 MSER 155 (Berman, Jul. 21, 2015) had already been investigated by the Office for Civil Rights (“OCR”) and the district filed a motion to dismiss, alleging that the parent was barred from subsequently litigating those issues again before the BSEA. The hearing officer denied the district’s motion to dismiss because OCR had not issued detailed legal findings regarding the alleged denial of FAPE and because, although a decision by the BSEA may have a preclusive effect on bringing subsequent claims before OCR, there was no legal authority for the converse.

In Revere Public Schools, BSEA #1507485, 21 MSER 163 (Berman, Jul. 27, 2015), parents filed for hearing seeking to extend a student’s special education rights for two years (until age 22), although they had previously signed a settlement agreement, which Revere had fully implemented, that ended the student’s special education eligibility in June 2015. The parents argued that they had felt coerced to sign the mediation agreement and did not fully appreciate its binding effect, and also that their child required a continuation of the special education services that he had been receiving pursuant to the agreement. The hearing officer granted the district’s motion to dismiss, stating, “it is well settled that a BSEA mediation agreement, signed by all parties and fully implemented, precludes a subsequent BSEA hearing on the issues resolved by the agreement.” Id. at 165. Although “the law simply does not give the BSEA the authority to undo a fully implemented mediation agreement,” the hearing officer also noted that state and/or federal courts can address situations where the voluntariness or validity of an agreement is at stake (though the parents had not introduced any evidence to suggest that this was the case here). See id.

Comment: In previous Commentaries we have warned about agreements that provide for some funding of services and/or a placement for a certain period in return for the parents giving up any and all rights—barring a material change in circumstances—at a future time, even though the student might otherwise remain qualified for an IEP. We have previously raised the question of whether a hearing officer could 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. In Revere, the hearing officer reiterated the BSEA’s position that the agency will not exercise a heightened standard of review to ascertain whether the student’s eligibility—arguably the single most fundamental right of a disabled student—has been validly waived by a settlement agreement. The later needs of a child can never be fully anticipated at the time of a settlement agreement, and parents must therefore understand the risks involved in waiving future eligibility in return for services or placement to meet a student’s needs in the near term.

In Weymouth Public Schools, BSEA #1409137, 21 MSER 175 (Figueroa, Oct. 2, 2014),[4] the parent filed a hearing request alleging that bullying had created an unsafe environment for the student. The parent requested that the BSEA order the implementation of a bullying plan and a placement in a “safe environment” outside the district. After the parent filed the hearing request, the parties signed a written agreement on several issues and confirmed the student’s continued attendance at Weymouth High School. However, in subsequent calls with the hearing officer, the parent raised additional concerns that were not included in her hearing request, including that the student had been placed into classes with students who had bullied him in the past. The district filed a motion to dismiss, arguing that there was no longer a case or controversy due to the agreement as to placement in the district and that the BSEA did not have jurisdiction over the remainder of the parent’s concerns because she had not included them in her hearing request. The district also argued that many of the parent’s concerns, such as receipt of copies of student’s schedules prior to the start of the school year, fell into the category of day-to-day operations of the district and were not appropriately addressed by the BSEA. As in Revere, the hearing officer looked to the written agreement that the parties had signed with regard to placement and granted the district’s motion to dismiss as to the issue of out-of-district placement. However, the hearing officer denied the motion with respect to bullying and a safe learning environment, as well as with respect to many of the parent’s subsequently articulated concerns, because these claims implicated FAPE.

After filing a hearing request on May 21, 2015, the parent in Ludlow Public Schools, BSEA #1509319, 21 MSER 209 (Figueroa, Sept. 8, 2015), filed an amended hearing request on June 12, 2015 that raised (for the first time) a compensatory claim for services allegedly not provided in 2013. Ludlow filed a partial motion to dismiss, stating that the parent’s compensatory service claim was barred by the two-year statute of limitations and should therefore be dismissed. Indeed, BSEA Rule I(G) states, “For issues not included in the original hearing request, the date of the amended hearing request shall be controlling for statute of limitations purposes.” However, after examining various IEP documents, including an accepted IEP dated June 26, 2013 (within the two-year statute of limitation) and noting that the parent had not specified when in 2013 the gap in services occurred, the hearing officer declined to dismiss the parent’s hearing request. Instead, the hearing officer stated that if the district had failed to provide the student with the agreed-upon services at any time during the period not barred by the statute of limitations, those claims would be viable.

Lowell Public Schools, BSEA #1410301, 21 MSER 173 (Figueroa, Sept. 4, 2014),[5] concerned the timing of a student’s transportation to the program and placement listed on his IEP. The parent requested that the student be picked up at 8:45 a.m. instead of 9:05 a.m. so that the parent could get to his job by 9:00 a.m. Parent filed for hearing, stating that if the pick-up time did not change, the student would be unable to attend the language-based program specified on his IEP. Lowell had offered various suggestions and accommodations, all of which required the parent to pay for before-school care and none of which the parent was able to afford. Lowell filed a motion to dismiss, stating that the BSEA did not have jurisdiction over the operational functions of school personnel and Central Administration. The hearing officer agreed with Lowell, stating “the transportation issues raised by Father have nothing to do with Student’s special education,” and dismissed the case with prejudice. Id. at 174.

Comment: The hearing officer noted that because of the transportation issue, the student had been forced to attend his previous placement, which his Team had decided was inappropriate for him. We would therefore argue that the transportation issues were denying the student a FAPE. Although neither party was alleging that the student required “special” transportation (e.g., van transportation as opposed to bus transportation), it would appear that “special” transportation was in fact necessary for this student to receive a FAPE.

Hearing Officer Figueroa denied the district’s motion to dismiss in Boston Public Schools, BSEA #1503625, 21 MSER 193 (Dec. 15, 2014)[6] when the parent alleged that Boston’s failure to propose a residential placement meant that the student had to be detained by the Department of Youth Services (“DYS”). The parties had previously entered into a settlement agreement that provided for an unspecified private day placement for one year, and the parent had subsequently accepted a day placement at Chamberlain International School. The agreement provided that if the student did not complete his placement for any reason, he would be afforded all the rights guaranteed to him under IDEA. However, the day before the student was to start attending Chamberlain, he was placed in the custody of DYS. A juvenile court judge subsequently agreed to release the student prior to the trial but only if he attended a therapeutic residential program. Shortly thereafter, Chamberlain retracted its acceptance of the student in its day program and indicated that he would only be accepted as a residential student. Meanwhile, the student’s mental health and behavior had deteriorated in the DYS facility. He had been hospitalized for banging his head against the wall, had required multiple restraints, and had bitten a staff member. Boston, however, refused to fund a residential placement. In its response to the parent’s expedited hearing request, Boston relied on the settlement agreement and argued that the parent’s case should be dismissed as a result. Boston further stated that it was ready to pay for a day placement as soon as student was released from DYS custody and argued that if the student required residential placement, it was not for educational reasons and therefore a different agency (e.g., DYS or DMH) would have to be responsible for the residential portion of a placement.

The hearing officer denied Boston’s motion to dismiss due to the factual disputes between the parties and scheduled a hearing in the matter. In another ruling involving the same case (21 MSER 197), the hearing officer denied Boston’s motion to join DMH because the student had not yet been found eligible for DMH services and had not received DMH services in the past. The hearing officer bifurcated the matter so as to determine Boston’s responsibilities to the student first and then to bring DMH into the case if the student was found eligible for DMH services and if Boston was not responsible for the residential part of the student’s programming.

Comment: It does not appear that this case ended up going to hearing, so one can only guess how it was resolved. It is worth noting the contrast between Boston and Revere, which also involved a settlement agreement. In Revere, the settlement agreement had been fully implemented and there had been no change in circumstances other than the parents wanting the student to spend more time in his program than they had originally agreed to. In Boston, however, the settlement agreement had not been implemented and the student’s circumstances had changed drastically. More importantly, however, Boston was not just arguing that it was only responsible for a day placement. Boston also argued that the district was not required to convene a Team to consider the change in the student’s status given the behavior that landed the student in DYS lockup, his decompensation while detained, or the new recommendations for services and placement that had surfaced since the agreement was signed. Boston’s position that the student did not require residential placement was not unexpected, but its attempt to deny the student the basic rights afforded to him under IDEA while he was detained and seriously decompensating, all based on a settlement agreement that was incapable of implementation, went beyond the normal course of disagreements over placement.

The student in Lincoln-Sudbury Regional School District, BSEA #1502427, 21 MSER 199 (Figueroa, Jan. 14, 2015)[7] was injured during field hockey practice and sustained a concussion. Despite the student’s cognitive and academic difficulties in the wake of her concussion, as well as repeated requests from the parents that Lincoln-Sudbury evaluate her for special education eligibility, Lincoln-Sudbury took no action for close to a calendar year. The parents provided math tutoring and then unilaterally placed the student at Lawrence Academy and requested reimbursement from the district. The parents filed for hearing in what apparently became a very contentious case. After various written submissions, the district filed a motion to dismiss. The hearing officer dismissed with prejudice two issues that the parents and district agreed were beyond the scope of the BSEA’s jurisdiction as well as two additional issues (enforcement of a non-special education statute concerning head injuries and a school policy regarding grades that was applicable to all students). The parents withdrew one issue without objection. The hearing officer denied the district’s motion to dismiss questions of whether the parents were entitled to reimbursement for their unilateral placement at Lawrence Academy and/or reimbursement for the math tutoring that they provided during the summer of 2013. While reserving judgment on whether the parents would be able to prevail on their claims, the hearing officer noted that the question of whether the student should have been identified as a student with special needs and provided with services after her concussion was “the central question in this case” and that the parents had stated a plausible claim for relief. The hearing officer also denied the district’s motion to dismiss the parent’s claim regarding the district’s failure to comply with doctors’ orders after the student’s concussion because the issue had the potential to be “inextricably intertwined” with resolution of other issues. Id. at 202.

In Greater New Bedford Vocational Technical High School, BSEA #1600355, 21 MSER 203 (Figueroa, Sept. 2, 2015), the school filed for hearing to address the parents’ rejection of various IEP proposals. The parents asserted counterclaims, including allegations that the school demonstrated a pattern and practice of discrimination against students with disabilities and students of color, both in the admissions process and after the student began attending the school. The school filed a motion to dismiss, arguing that the BSEA lacked jurisdiction to hear claims not arising under IDEA or Section 504, that the student lacked standing to challenge admissions policies because he had been admitted to the school and had therefore suffered no injury, and that the student, as a Caucasian, lacked standing to challenge the school’s alleged discrimination against students of color. The hearing officer dismissed the parents’ counterclaims concerning admissions policies and discrimination against students of color. The hearing officer allowed the student’s IDEA and Section 504 claims to remain, including allegations of disability-related discrimination against the student while enrolled in the program, to proceed. n

[1] A member of the special education and disability rights practice group at Kotin, Crabtree & Strong, LLP represented the parents in this case.
[2] All student names in BSEA decisions and rulings are pseudonyms chosen by the hearing officers.
[3] This ruling is from the first quarter but was not published in MSER until the third quarter of 2015.
[4] This is a case from the fourth quarter of 2014 that had not previously been published in MSER. After the motion was decided, the case apparently resolved.
[5] This is a case from the third quarter of 2014 that had not previously been published in MSER. After the motion was decided, the case apparently resolved.
[6] This is a case from the fourth quarter of 2014 that had not previously been published in MSER. After the motion was decided, the case apparently resolved.
[7] This is a case from the first quarter of 2015 that had not previously been published in MSER. After the motion was decided, the case apparently resolved.