Commentary on Massachusetts Special Education Decisions: 2nd Quarter, 2004

The following article first appeared as a quarterly commentary in Massachusetts Special Education Reporter (MSER), a publication focusing on the decisions of the Massachusetts Bureau of Special Education Appeals.

Introduction

The BSEA Hearing Officers were prolific this second quarter. We selected some representative cases for comment. Two cases involved Hearing Officers who dealt with their concerns about insufficient evidence by appointing independent evaluators to fill in the evidentiary gaps. In three cases, the Hearing Officer found seriously inadequate adherence to procedural protections by the school district. In one case the Hearing Officer declined to allow expulsion of a student, based in part on those procedural violations. Another ordered reimbursement of the costs of a private-school placement because of the inadequate response by school officials to parents’ requests for help. One case demonstrates how bad a situation can become when a pro se parent has a teenage child who challenges the abilities of even the most skilled programs. Two cases involved disputes between two districts about financial responsibility.


Decisions

Sharon Public Schools, BSEA #03-4311, 10 MSER 164 (2004)

This case was in an unusual procedural posture. The Hearing Officer had already held a hearing, found that both the parents’ and the district’s programs were inappropriate, and required the district to fund an independent evaluator to assess the appropriateness of various program options. The independent evaluator engaged in an extensive observation of the student’s program, diagnostic testing, and an interview with the student. Based on this, the independent evaluator found that the district’s program with modifications could be made appropriate for this student.

Modifications suggested were daily intensive 1:1 decoding instruction in a quiet location, tutoring, more technology support, and a “language immersion program” in the summer. The evaluator testified that in the past she had recommended that students with similar profiles be placed at Landmark, but believed that the district’s program could be modified to meet this student’s needs. She also originally indicated that the decoding instruction needed to be provided by a Wilson-certified instructor, but later decided that the instructor had the skills to provide decoding instruction. This was based on her observation of the instructor working with the student and the school system’s commitments for training and consultation to the instructor.

Parents’ attorney moved to challenge the findings of the independent evaluator and presented one expert. Parents’ expert, who was more critical of the public-school program, opined that the student would overcome any anxiety about changing schools and thrive in a more intensive, comprehensive language-based program such as that provided by Landmark School.

The Hearing Officer was convinced by the appointed independent evaluator and ordered modification of the public-school program.

One lesson of the case is that it will be difficult to overcome the opinion of an independent evaluator (apparently mutually agreeable to the parties) who is engaged by order of the BSEA, especially when the resulting assessment is as apparently balanced and thoughtful as in this matter. On the other hand, it is extremely frustrating for parents to have to go through the huge emotional and financial cost of two stages of litigation, and have their child faced with the same program (however improved) that was the cause of this upsetting battle.

It will be important for the parents to follow up a few months later by having an independent evaluator once again do testing, observe the program, and determine whether the anticipated success in the enhanced program has occurred. If it has not, with this much history, there should be no choice but to move the student to a comprehensive specialized program.

Weymouth Public Schools, BSEA #04-3807, 10 MSER 171 (2004)

In this matter parents requested a “stay put” order during the special-education evaluation process. The student had been a regular-education student in the Weymouth Alternative High School when she was suspended after an altercation with a teacher. The school’s evaluation stated that the student presented with anxiety, panic attacks, depression, anger, and low self-esteem. Nonetheless, the district found the student ineligible for special education or a Section 504 accommodation plan and informed the mother of this determination at a Team meeting.

The very next day the principal expelled the student, subject to a right to request reinstatement in the next school year. The superintendent rejected an appeal by the parents. No educational services were provided during the student’s exclusion.

Relying on a United States District Court decision, S.W. and Joanne W. v. Holbrook Public Schools, 221 F. Supp. 2d 222 (2004), and BSEA decisions (e.g., Hampshire Regional School District, 4 MSER 81 [1998]), the Hearing Officer found that “stay put” applies to a student during the evaluation process if the district was on notice that the student may have had a disability before the behavior that resulted in disciplinary action. The Hearing Officer found that the referral for evaluation provided ample notice to the district. She ordered the district to reinstate the student as a regular-education student in the Alternative School, pending resolution of the eligibility issue, unless and until the parties could agree on another placement.

One notable portion of the decision, which was not critical to the outcome, related to the general rule for stay-put outside the discipline context. The Hearing Officer cited federal law for the proposition that stay-put is triggered by the filing of a request for hearing. She was interpreting the language in IDEA that stay-put applies during the “pendency of the proceeding.” 20 USC s.1415(j).

However, state regulations provide a broader scope of stay-put protection that applies during any “dispute” regarding placement or services, not just a dispute that advances to litigation: “In accordance with state and federal law, during the pendency of any dispute regarding placement or services, the eligible student shall remain in his or her then current education program and placement unless the parents and the school district agree otherwise.” 603 CMR 28.08(7).

This rendition provides the appropriate protection for students and parents. It would be ironic indeed if a district could simply ignore a parents’ rejection of a change in program and then proceed to implement it, even if the parents did not have the wherewithal to file a legal action against the district. Ever since its enactment, Chapter 766 has protected a student with special needs from unilateral action by school officials unless and until they can prove to a Hearing Officer that their proposed changes are appropriate. Except in the area of discipline, that protection has not been reduced in state law.

Comment: The complex statutory scheme for suspending or expelling students with apparent disabilities has sometimes been reduced to a series of tactical maneuvers. The energy expended there would be better spent designing effective interventions to allow students to stay in school and develop skills to be productive adults. Finding ways to keep students in schools or finding more appropriate alternatives may well prevent the unnecessary waste of human potential. This is what Ch. 766 and IDEA were designed to do.

Chicopee Public Schools, BSEA #04-0093, 10 MSER 158 (2004)

In this matter parents were successful in proving that a public-school program was inadequate to meet the needs of a 15-year-old student with serious learning disabilities, and that private placement at the White Oak School was appropriate. The Hearing Officer noted that the designation of “staff” in the sixth-grade IEP made it impossible to determine what, if any, services were intended to be “special education.” The seventh-grade IEP provided for “modified curriculum” with neither performance levels nor measurable annual goals. The student was still on this IEP during the first half of 2002 when the school’s own testing showed reading scores at the second-grade level and math scores at the fifth/sixth-grade level. Parents testified that these scores showed no improvement from the past year and that the student was extremely anxious and unhappy about school. After unsuccessful efforts to obtain more appropriate and intensive services for the student in the public school, parents enrolled her in the White Oaks School. In placement tests at White Oak, the student scored in the fourth/sixth-grade level.

Even though the parents did not specifically raise procedural issues, the Hearing Officer found that the district failed to meaningfully include parents in the IEP process, ignored its own testing, and failed to offer therapeutic services even though the district claimed that social/emotional issues were the primary cause of the student’s failure to make progress. The Hearing Officer found that the district repeatedly failed to propose services that its own testing indicated were necessary, and failed to follow through on its own last-minute suggestion for reading instruction. These and other lapses represented serious violations of the procedural protections of IDEA and supported parents’ belief that the district would not provide an appropriate program for the student.

The Hearing Officer also found that White Oak provided a program consistent with the only comprehensive evaluation (conducted by an independent evaluator) and that Chicopee had not offered an appropriate program. She awarded full reimbursement of out-of pocket expenses for parents’ placement of student at White Oak.

Comment: There apparently was no request for compensatory relief. However, the Hearing Officer’s findings would likely support both a claim for compensatory services and a claim for damages under Section 504 of the Rehabilitation Act for willful failure to comply with the procedural protections of state and federal law.

Hamilton-Wenham Regional School District, BSEA #04-4201, 10 MSER 210 (2004)

This case represents a quagmire we would all like to avoid. Pro se parents failed to secure a residential placement that everyone agreed was necessary, because of confusion about procedure and failure to follow through on offers of placement. An earlier BSEA decision [9 MSER 351 (2003)] had required the district to place the student at Harbor School, but the student did not want to attend. Based on advice from the student’s psychiatrist, parents did not place student at Harbor and did not contact Hamilton-Wenham for an extended period.

Parents apparently did not understand the method for appealing a BSEA decision and instead sent letters to the Massachusetts Department of Education. Eventually parents asked for a placement at another program, Swift River, to which Hamilton-Wenham agreed. The student was discharged from Swift River after a few days, however, because of oppositional behavior. Swift River recommended that the student be placed in a therapeutic wilderness program, after which he could return to Swift River. Parents requested such a placement. Hamilton-Wenham declined to make a placement at a non-academic, out-of-state wilderness placement, but sent referrals to other residential therapeutic schools. Hamilton-Wenham later agreed that the district would reimburse parents for placement in the wilderness program, and the student successfully completed the program.

In the hearing, the district characterized the proceeding as an attempt to reconsider or reopen the earlier decision. The Hearing Officer agreed and declined to reopen, based on the IDEA requirement that BSEA decisions be “final.” The situation seemed complicated by the fact the student had turned 17 during the intervening months, was no longer subject to the compulsory-attendance law, and was apparently disinclined to attend any of the proposed programs.

This was an understandable but unsettling result. The district had attempted to comply with the original order and had even agreed to a second placement that quickly failed. The frustration of the district was warranted. But using the “final decision” policy of the BSEA was a blunt instrument for resolving a serious problem for a very challenging student. The “final decision” rule in the first place is a misunderstanding of the federal requirement that the administrative Hearing Officer’s decision be final. This means that no other person or entity within the state may reverse the decision. It should not prevent a Hearing Officer, like any other judicial officer, from reconsidering a Decision and Order on the basis of a mistake by one of the parties or the Hearing Officer, or because of newly discovered evidence. Adopting a rule for reconsideration that mirrors the Rule 60 of the rules of the Massachusetts Superior Court and United States District Court would avoid unnecessary rigidity in appropriate situations.

In this case, another approach would have been to consider the new evidence of the student’s needs and recent failures, treat those as a function of the student’s disability, and require the district to take reasonable steps to support or arrange for the only program that anyone was recommending at that time. If the student declined to attend, there would be no further action required. The practical result may have been the same, but at least that one last chance would have been offered.

Pioneer Valley Regional School District, BSEA #04-2566, 10 MSER 214 (2004)

This case involved an 11-year-old boy with learning disabilities, deficits in executive functioning, and attention-deficit hyperactivity disorder. The district provided a primarily mainstream program with pull-out speech therapy, counseling, and special-education support for three-and-a-quarter hours per week. Mother sought a placement at Curtis Blake School, a private school providing very small classes and language-based instruction. Mother testified that she had to support her son’s homework, that she read aloud his reading assignments, and that her son had difficulty reading books at the second- and third-grade levels. She objected to her son being instructed by an aide in a cubicle in the regular classroom.

The student’s private speech pathologist testified that she was able to assist the student with reading skills with individual tutorials away from any distractions, but that the student was still reading at a second-grade level as he left the fifth grade. She was concerned that the aide provided by the district had no specialized training and that the student needed a full-time language-based program with small classes. A witness from Curtis Blake School testified that the school could provide the program recommended by Massachusetts General Hospital evaluations and the student’s speech therapist/tutor.

The student’s public-school teacher testified that he had no training in special education, but that he did consult with the special-education teacher and felt he knew how to instruct the student and other students on IEPs who had a variety of behavioral problems. He described the student as a “very challenged learner.” He acknowledged that it could be helpful for the student to have a 1:1 aide (rather than a shared aide), but was unconcerned that the aide did not join the class until 11:00 a.m. The teacher testified that he implemented some of the recommendations of the MGH neuropsychological evaluation but was not trained to teach students with learning disabilities, so did not modify or simplify the student’s work. He did not know whether he used the same methodology as other teachers who worked with the student. He testified that the student had made progress in his class, though he had no objective measures of this perceived improvement other than the ability to read somewhat higher level material.

The district’s special-education teacher testified that she worked with the student 45 minutes per day primarily on reading and that she thought, of the array of disabilities, including L.D. and executive-function problems, ADHD was the greatest problem for student. She indicated that there was anecdotal evidence of progress, though no testing. She could not explain why the student had not made more progress in reading. The teacher testified that there was no consistent carry-over between what the private tutor was working on and what was taught in the classroom.

The district’s speech and language therapist testified that she had been working with student for three years, that she had limited understanding of his academic progress, and that the student sometimes seemed to have made progress and sometimes seemed to have forgotten what he learned.

The Hearing Officer partially accepted the district’s contention that the effectiveness of a program and measure of a student’s success should be considered in light of the student’ s potential, but he rejected the special-education administrator’s argument that the student’s limited success in reading should be found adequate in light of his low average I.Q. scores. The Hearing Officer accepted the testimony of the reading expert that I.Q. is not an accurate measure of reading potential since reading deficits may be a function of issues not measured by an I.Q. test, and that student’s language-based learning disability would be appropriately addressed by a specially designed program such as that provided by Curtis Blake. The Hearing Officer noted that the First Circuit Court of Appeals has held that the burden of proof of the adequacy of a district ‘s program is on the district; the burden of proof on the adequacy of a parent’s proposed alternative is on parents. Fuhrmann v. East Hanover Board of Education, 993 F.2d 1031, 1034-1035 (1st Cir. 1993), cited with approval. T.B. v. Warwick School Committee, 36 F.3d 80, 86, N.4 (1st Cir. 2004).

The Hearing Officer noted that student had made some gains in reading, but credited the testimony by his tutor (supported by mother’s descriptions) that the student had not moved beyond basic reading mechanics; this assessment was supported by testing showing fluency and accuracy below the first percentile. He pointed out that the current IEP and the prior year’ s IEP were essentially identical, supporting the impression the program was making little headway in addressing the underlying reading deficits. Progress in writing and reading had been minimal.

The Hearing Officer found that the student needed instruction by specialists and reinforcement in the regular classroom, and that the latter had not been sufficient. He found that the district’s IEP was not sufficient to provide FAPE to the student. There was no evidence presented by either side as to how the public-school program could be improved to correct the deficiencies.

The Hearing Officer also found that Curtis Blake could provide an appropriate program for the student, but was not able to make a finding as to whether it could provide a program in the least-restrictive environment. He found that parents’ witnesses could not testify about whether the public-school program could be modified, because they had not observed the program. The student’s tutor had visited the year before, but the Hearing Officer found that she had not demonstrated expertise in assessing programs. The Hearing Officer rejected the Curtis Blake speech pathologist’s testimony regarding the appropriateness of Curtis Blake because she had never met the student or talked with his teachers. He rejected recent MGH evaluators’ recommendations as a basis for private-school placement because the qualifications of these evaluators were not presented in evidence, the evaluators had not observed the public-school program, and they did not testify. Nor did the MGH evaluations specifically recommend a program like Curtis Blake.

Finding that he lacked the information necessary to correct the inappropriate program, the Hearing Officer took the unusual step of appointing an independent evaluator at the school district’s expense to address the placement issue. He gave the parties the opportunity to agree on an evaluator or, if they were not successful, to present candidates from among whom he would select one.

One can imagine how frustrating it must have been to parents to fail to obtain an order for a Curtis Blake placement, especially given the manifest inadequacy of the public-school program. If this family had had the financial means to place the student at Curtis Blake unilaterally, then under the standards of the Supreme Court’s decision in Florence County, they seemed to be in a good position to have been reimbursed for the tuition and costs. While the Hearing Officer’s concerns about the weak foundations of some of the expert testimony make the result understandable, an alternative result could have been to place the student at Curtis Blake and have the additional evaluations done in the context of a program that had professionally skilled staff, which did not seem to be available at the public school.

In any case, the Hearing Officer did identify a creative solution to deal with missing elements of evidence. Appointing an expert can often be a practical means of fulfilling the BSEA’s responsibility to assure that a student actually receives FAPE in the least-restrictive environment.

Williamstown Public Schools, BSEA #04-4917, 10 MSER 234 (2004)

In this matter the Hearing Officer declined the district ‘s requested order for an extended evaluation in a specific residential program after finding that the proposed school had no specialized expertise to serve the student. He also found that another in a long line of short-term placements would be traumatic to the student, who was a survivor of child abuse. Instead, the Hearing Officer ordered the district to work with the parents’ expert on child abuse to identify an appropriate therapeutic school placement for the student.

Comment: Extended evaluation can be an important tool in some confusing cases, but can also be inappropriate if it delays a much-needed placement. The Hearing Officer got it right in this case.

Boston Public Schools, BSEA #04-1509, 10 MSER 256 (2004)

This case presents the frequently occurring situation in which a student with social/emotional disabilities as a result of abuse is placed by the Department of Social Services in a residential treatment center and school. At some point DSS often seeks to shift educational responsibility to the school district.

In this case, the Hearing Officer had ample evidence that the student had social/emotional and other disabilities that required educational services in a residential setting and rejected the district’s proposal of a public-school day program.

Comment: IDEA requires state agencies to share the responsibility for education and related services for children with disabilities. A more comprehensive system of interagency agreements could spread the responsibility more broadly among state agencies for the high costs of the most severely disabled students and could free local school-district funding for the remainder of their extensive responsibilities. This would also reduce the need to use the resources of the BSEA and high-cost litigation to resolve disputes such as these, which are essentially between two agencies and of little consequence to the student.

Amesbury Public Schools, BSEA #03-2465, 10 MSER 178 (2004)

This Hearing Officer rejected the DOE’s finding that Amesbury should share responsibility for a child based on a claim that the mother had last lived at a specific address in Amesbury. The Hearing Officer credited affidavits that the mother never lived at the (non-existent) address or even at a similar-sounding address.

Lesson: It may be worthwhile for districts to investigate the factual bases for LEA assignments.

Rockland Public Schools, BSEA #04-2990, 10 MSER 207 (2004)

In another dispute regarding assignment of fiscal responsibility by DOE, the Hearing Officer found that state law focuses on where the parent actually lives, rather than legal residence, in determining responsibility for special education, especially when the student is in the custody of DSS. In this case, the Hearing Officer sustained the DOE’s assignment of responsibility to the town (Rockland) in which the parent lived at the time services were provided and at the time the parent’s rights were terminated. This case had an unusual history in that the DOE had originally assigned responsibility to another town (Duxbury), which had brought an action at the BSEA and provided more information on the mother’s living situation. Based on this new information, DOE changed the assignment to Rockland, which itself brought this action.

Lesson: It pays for a district to challenge DOE assignments if there is new information on parents’ living situations. Ideally, such information need travel no further than the DOE administrative staff to result in a change of assignment, obviating the need for action at the BSEA, since litigation is a costly and inefficient method of finding facts and resolving disputes.

Conclusion

This quarter presents more examples of the substantial financial and emotional costs incurred by parents protecting their children’s rights to special-education services. The cases are often not simple, and the Hearing Officers generally do a great job trying to make sense out of complicated records and ordering judicious relief. One large problem is that the cost of pursuing these cases puts the process out of reach for many families, especially where a large percentage of cases settle and attorney’s fees and costs may not be recoverable. Solutions for making the system more accessible may be possible at the front and back ends.

If mediations were structured in a way that were geared toward enforcing students’ rights to services and procedures, rather than toward compromises that fall short of that, then relief could be achieved more efficiently and inexpensively at that stage. For those cases that go to hearing, if findings supporting damages or other compensatory relief were more frequently included in the final order, then this would deter districts from taking cases all the way through hearing. Neither of these is easy, but it may be useful to consider institutional solutions for challenges faced by students and parents when there are manifest deficiencies that need achievable solutions.