Commentary on Massachusetts Special Education Decisions: 1st Quarter, 2003

This quarter features a large number of cases, but extremely few in the typical posture of the Hearing Officer deciding on competing program proposals from parent and school district. Many of this quarter's cases address purely procedural matters in which, for example, the district declines responsibility for a student's program, or seeks financial participation from another district or state agency. Examples of the former are Amherst-Pelham, where the district denied the student actually resided in the district, and East Longmeadow, where the district objected to the Department of Education's assignment of fiscal responsibility. Examples of the latter include Salem, where one district sought cost-sharing from the non-custodial parent's district, and Worcester and Lowell (Decision on Joinder Motion), where the districts sought to join one or more state agencies.

Other cases deal with access to records by a non-custodial parent (South Hadley) and a claim against a private school that received no state or federal funds and delivered no services under IDEA or MGL c. 71B (Cardinal Spellman). Two cases deal with the increasingly serious problem of districts not responding to discovery requests and other procedural requirements of due process (Medford and Dedham). And two cases reveal two sides of the issue of whether BSEA Hearing Officers will enter Orders enforcing settlement agreements (Boston [BSEA #03-0536], where the Hearing Officer declined the parents' request to enter an order incorporating the settlement of the parties, and Dartmouth, where the Hearing Officer dismissed parents' claim to a due-process hearing regarding matters already resolved in a settlement agreement-effectively enforcing the settlement agreement). The most straightforward contest of programs involved a largely unsuccessful effort by a pro se parent to pursue a long list of grievances after a series of settlements along the way (Brookline).

Medford Public Schools, BSEA #03-0033, 9 MSER 11 (2003).

This case addresses an increasingly frequent problem that threatens students' and parents' full access to the due-process system. Increasingly, it seems, districts fail to respond to discovery requests or submit documents and answers that fall short of full responses. Frequently the information requested is central to the litigation of the case.

In Medford, parents and their advocate had filed an initial hearing request and made a series of attempts to settle the matter with the assistance of the Hearing Officer. When these efforts were unsuccessful, the parents retained an attorney, who filed an amended request for hearing. The amended request included claims that the program offered by the district was inappropriate for a number of reasons, resulting in the student's not receiving the services required by the IEP. Parents' attorney submitted discovery requests seeking information and documents, and parents requested a full copy of the student's educational records. Parents' attorney agreed to a deferral of discovery responses until December, but the district then filed objections to some of the requests.

Parents filed a motion to compel discovery, which was granted by the Hearing Officer after careful analysis. The order required delivery of the discovery responses by a date certain and a detailed list of material being withheld on the basis of attorney/client privilege.

When the district repeatedly refused to comply with a series of orders and deadlines, the Hearing Officer ordered sanctions. He found that sanctions were appropriate for two reasons: 1) the information withheld (in this case, records of staff attendance and related information) deprived the parent of the information he needed to pursue important elements of his case, and 2) repeated failure to comply with discovery requests and orders undermined the integrity of the hearing process.
Therefore the Hearing Officer ordered sanctions that 1) prevented the district from presenting evidence on the issue for which discovery was not provided, and 2) accepted any evidence submitted by the parents on these subjects as established conclusively.

The Hearing Officer considered but rejected the sanction of awarding judgment to parents. He did so in part because Medford had provided some substantive responses to discovery requests, and the withheld discovery related primarily to the student's claim for compensatory services, not the prospective claim for FAPE.

This is a careful and well-reasoned response to a practice that is occurring in many cases at the BSEA. Hearing Officers' uncertainty as to how to respond when a party refuses or ignores discovery requests seems to have encouraged some counsel to flout deadlines and orders. Even when discovery is provided, it is often incomplete and provided just before or during trial, delaying the process further. We have had frequent experiences of learning of important documents for the first time when school staff disclose their existence during testimony at hearing.

The due-process system as established by statute and regulations is designed to allow informal and efficient resolution of dispute, but the process is frequently neither informal nor efficient. Refusal to respond to discovery or to comply with a Hearing Officer's deadlines often requires parents to expend precious resources in litigating discovery issues or pushing the hearing process forward. These delays and diversions put off the provision of appropriate services to students, raise the cost of due process for parents (sometimes beyond the reach of many families), and frustrate the intent of IDEA and Chapter 766. This diversion from the primary purpose of the due-process system is indicative of how litigious and inefficient this process has become. Imposition of effective sanctions like those imposed in this matter (and even earlier in the process) is essential to change the way these cases are handled-a critical step in making due process an effective means of enforcing the legal rights of each child with disabilities.

Dedham Public Schools, BSEA #02-0722, 9 MSER 44 (2003).

This is another example of a district utterly failing to respond to discovery, then failing to comply with two orders of the Hearing Officer. Even after the district's counsel assured the Hearing Officer that the documents would be produced by a date certain, the documents were provided weeks later and were apparently incomplete.

Parents requested sanctions including denial of the district 's opportunity to present evidence regarding the issues implicated in the incomplete discovery responses or regarding the inappropriateness of the program proposed by parents.

In this case the Hearing Officer denied the sanctions, citing the "common practice" of parties' waiting until after the prehearing to respond to discovery requests, the fact that the parents did not seek sanctions until several weeks after discovery was due, and the fact that discovery was provided in time to prepare for hearing.

Without knowing more facts, it is difficult to judge the result, but this oft-repeated scenario is extremely troublesome and warrants reconsideration of the policy by the Bureau. Federal law requires that hearings begin in 20 days and have decisions issued within 45 days. While these timelines are frequently extended by agreement, the statutory scheme clearly intends prompt resolution of cases. Extensions of deadlines without consent of the parties or good cause (something more explicit than the general assertion that counsel or staff are not available on the appointed day) should rarely be given. This is especially true if the deadlines have simply been ignored, which is often the case. If a compliance order is required to move the case along, the consequence of failure to comply should be severe.

Boston Public Schools, BSEA #03-0536, 9 MSER 18 (2003).

In this case, the Hearing Officer returned to the question he addressed so well in Rockport Public Schools, 8 MSER 1 (2002): how should a Hearing Officer respond to a request for an order incorporating a settlement agreement or IEP accepted by the parties? This case presented an unusual rationale for the request by student's counsel, but may provide some guidance for practice.

After an initial flurry of litigation, the case was largely resolved when the district presented a private-school IEP on the first day of hearing. There was no specific placement identified at that time, but a placement was identified within a few weeks after continued wrangling between the parties.

After the placement occurred, student's counsel filed a Motion for a Final Decision. The purpose of the motion was not entirely clear. The requested relief included an order entering the agreed-upon IEP on the record, requiring compliance with the IEP (including placement at Bay Cove Academy), and a finding that Boston had violated the student's procedural rights.

It appears that the rationale for the order evolved as circumstances changed, and perhaps the request was an effort to provide a basis for a claim for attorney's fees, but this was not explicit. The Hearing Officer analyzed each of the arguments presented for such relief. He found that while relief may be appropriate for alleged procedural violations, in this case the facts did not establish that the student was harmed by the alleged procedural violations. The Hearing Officer noted that, while he assumed he had the authority to incorporate a settlement into an order, the BSEA policy is generally not to do so (a policy we have critiqued before, see 8 MSER C-6 [2002]). However, in this case the Hearing Officer found it was unnecessary to reach this issue because the appropriate relief for the alleged violations would have been compensatory services, relief that was not requested. In fact, since this element of relief was reserved, the student's request was dismissed without prejudice to pursue compensatory-education claims separately, a sensible solution to provide an opportunity for complete relief.

Massachusetts Department of Education, BSEA #03-1785, 9 MSER 1 (2003).

This opinion provides a nice exposition of the Department of Education's role as the guarantor of appropriate special education when a local school district fails to provide the service or, as in this case, has not even been assigned the responsibility. Here the Hearing Officer denied DOE's Motion to Dismiss the student's claim that she was entitled to compensatory education for the period of time from when she was in various hospitals until DOE assigned a local school district to be responsible for her educational programming. The undisputed facts were that the student had not had an IEP since 1999 while she resided in a series of hospital programs, and that she received little or no educational services in those hospitals. DOE had assigned one district on an interim basis late in the process.

The Hearing Officer rejected DOE's contention that its failure to assure that the student had an IEP did not mean the student was denied FAPE. Citing many authorities, the Hearing Officer found that the IEP, based on current evaluations, was the cornerstone of the state and federal special-education statutory schemes. This is essential to meet the "unique need" of each student. He cited the First Circuit Court of Appeals for the proposition that compensatory education may be awarded when parents' opportunity to participate in the IEP process has been denied, and indicated that the liability for compensatory education is even greater when student has no IEP at all.

The Hearing Officer also rejected DOE's argument that the ultimately designated local school district, not the DOE, should be responsible for any compensatory-education remedy. He found that DOE has the ultimate responsibility under IDEA for assuring FAPE to all eligible students, and that DOE is itself liable for compensatory remedies when its policy and practice fail to assign a school district to deliver educational services to a student.

Finally, the Hearing Officer found that DOE's good-faith efforts to gather information necessary to assign a local school district do not absolve it of responsibility for compensatory services.

Brookline Public Schools, BSEA #02-3847, 9 MSER 29 (2003).

The only case this quarter that addressed the appropriateness of a student's program appears to have been a hard-fought matter involving myriad other issues: specific diagnosis of student's learning disability, addition of reading instruction and summer services, procedural violations, and alleged retaliation. Many of the issues were partially resolved in a series of settlements prior to hearing, but the Hearing Officer still had to address most in the course of the decision. All parties agreed the student had serious nonverbal learning disabilities resulting in difficulties with organization, writing, and social skills, among other things. However, the Hearing Officer discounted parents' experts' testimony that the student also had reading disabilities that required individual instruction. She did find that student needed summer services and that the district committed procedural violations. However, she found that the procedural violations did not affect the substantive educational services and that the summer services offered by Brookline would have been sufficient, so she denied reimbursement for summer services purchased from the parents' expert witnesses.

Generally, we disagree with the practice of declining relief for procedural violations unless parents can prove an effect on substantive services, because the result is that districts are never sanctioned for sometimes egregious procedural violations. If a parent proves that the district has violated the procedural protections of state and federal law, then relief should be granted-minimally an order that the district discontinue such violations and, in appropriate cases, an order finding that such conduct violates Section 504 of the Rehabilitation Act, opening the possibility of monetary damages in a court action. A pattern of procedural violations can create a context of lawlessness that leaves parents feeling helpless and distrustful, an atmosphere that is certain to undermine the relationships and the appropriate functioning of the system for assuring FAPE for all students.

It would also seem appropriate to refer each decision that finds violations of any kind to the Commissioner of Education, to determine whether the Department should consider other administrative action, including compliance review, program audit, a corrective action plan, and, in egregious cases, withholding state and federal funds. Without this sort of referral system, the extraordinary resources that are required for parents to prove violations in a BSEA proceeding do little to prevent bad practices. A referral system would allow the careful consideration of large bodies of evidence by Hearing Officers to supplement the other compliance-review systems employed by the Department of Education.

We also question the Hearing Officer's acceptance of the district's argument that summer services provided by the district but not formally added to the IEP do not become part of the student's IEP and thus his "stay put" program. However, the factual background of the case is so confusing and the testimony of some witnesses so questionable that it is difficult to assess the Hearing Officer's effort to reach a balanced result. For example, despite providing little relief for parents' multi-count complaint, she did require the district to retain an expert in nonverbal learning disabilities to consult to the district and provide any necessary training.

Salem Public Schools, BSEA #02-4739, 9 MSER 23 (2003).

Turning to cases addressing disputed fiscal responsibility, this case presents an unusual variation regarding fiscal responsibility for a student in a private school. In this matter the Hearing Officer charted a middle path in ruling on one district's Motion for Summary Judgment. The parents lived in two Massachusetts school districts and had informally modified a divorce decree effectively to give them joint physical custody of the child.

The Hearing Officer found that state regulations allow for joint responsibility where a child has more than one residence (with separated parents and shared custody), but denied summary judgment on that issue since there are genuine issues of material fact which require an evidentiary hearing. She also held that a district's lack of knowledge that one parent lived in that district, and the lack of opportunity by that district to participate in the placement decision-making, do not affect its fiscal responsibility when the decision regarding that responsibility is based on a DOE interpretation of its regulations. Finally, she found that the district's written acceptance of responsibility does not preclude it from later challenging that obligation. This last finding is surprising since the very explicit acceptance of responsibility could have been considered an admission and avoided the whole litigation. Such a finding would have been understandable with a sophisticated party who is presumed to know the parameters of its legal obligations.

The Hearing Officer did extend a 30-day limitation period to allow one of the districts to appeal the DOE interpretation of regulations.

Worcester Public Schools, BSEA #03-0307, 9 MSER 51 (2003), and Lowell Public Schools, BSEA #03-2637, 9 MSER 52 (2003).

In these two unrelated cases, the districts failed in their efforts to pull state agencies into the dispute with parents. In the Worcester case, the district's Motion to Join the Department of Mental Health was denied without prejudice because DMH agreed that it would provide residential placement if and when an opening occurred, and the student's name was on the top of the waiting list. The Hearing Officer found that the BSEA has no authority beyond assuring access to the agency 's system pursuant to its own standards. This limitation is consistent with prior BSEA decisions.

In the Lowell case, the district's Motion to Join three state agencies and the private hospital where the student had been treated was also denied. One basis was that parents had a claim for services by agencies and had not supported the joinder motion. The Hearing Officer also found that the BSEA had no authority over a New Hampshire private hospital. In a time of fiscal challenges, it is understandable that school districts are looking for help from any likely sources, but the efforts to join human-services agencies in a BSEA proceeding has seldom proven to be a productive path and inevitably adds to the costs of the proceeding.

Amherst-Pelham Regional School District, BSEA #03-1839, 9 MSER 7 (2003).

In this case the district was not looking for other sources of services, but rather it asked to be absolved of responsibility for the student's services. The Hearing Officer denied the district's Motion to Dismiss a claim for services by the student who had a history of abuse and psychiatric hospitalization. After residing in the district for therapeutic reasons, the student had begun staying with family members in New Jersey periodically during the school year. The Hearing Officer found that temporary absences do not change the student's residence in Amherst or Amherst-Pelham's responsibility for her special-education programming. This is an appropriate result to assure that the student receives essential services from her home district unless and until another district takes responsibility for those services.

East Longmeadow Public Schools, BSEA #03-1917 and #03-1919, 9 MSER 55 (2003).

In another assignment case, the Hearing Officer rejected the district's objection to DOE assignment of fiscal responsibility for two students whose mother had lived in the district before moving out of state. The district's understandable complaint about fiscal responsibility for students with whom it has almost no ties reinforces the political argument that a much greater proportion of special-educational funding obligation should be shifted to the state and federal government.

South Hadley Public Schools, BSEA #03-1385, 9 MSER 10 (2003).

This case deals with an issue that can sap the energy of all parties and distract the district from service obligations. The Hearing Officer held that substantial compliance with G.L.c.71 §34A pertaining to access to student records by a non-custodial parent was sufficient, and she denied the custodial parent's request for relief when the district released records to the non-custodial father, who had presented a certified copy of a Massachusetts Probate Court Order allowing him access to the student's records. This is consistent with an earlier BSEA case which referred divorced parents to the Probate Court for resolution of disputes related to their respective parental rights.

Conclusion

Both the subject matter and the description of facts and procedural histories in this quarter's cases confirm our feeling that special-education cases have become increasingly contentious and costly for parents and school districts. Most of these cases were not final decisions in which parents could obtain reimbursement of attorney's fees. Most probably settled, giving parents little chance of obtaining reimbursement. (A challenge to the application of the Supreme Court's decision in Buckhannon to special-education cases is now pending in the United State District Court in Boston, so the context may change.) Nonetheless, the reality is that it has become more financially and emotionally costly for parents to enforce their children's rights to appropriate services, and even egregious refusals may go unchecked. The increasing inaccessibility of the due-process system in a time of fiscal retrenchment is having a clearly negative effect on the quality of service for children with disabilities. The challenge is to find ways to provide more funding options for school districts, while maintaining effective enforcement of statutory obligations.