United States: MSER Commentary - Second Quarter 2015

Last Updated: December 4 2015
Article by Eileen M. Hagerty


The second quarter of 2015 brings a total of three BSEA decisions and ten rulings. Only one of the decisions (Newton Public Schools) concerned a traditional dispute over a student's eligibility for special education and the appropriateness of the student's overall program and placement. The other two concerned transportation (Acton-Boxborough Regional School District) and interpretation of a settlement agreement (Pentucket Regional School District). The rulings address such varied issues as:

  • stay-put (Norton Public Schools and Agawam Public Schools);
  • standing (Clinton Public Schools);
  • joinder (Whitman-Hanson Public Schools and second rulings in Clinton and Norton);
  • discovery (Grafton Public Schools);
  • a request for postponement of a hearing (Lincoln-Sudbury Regional School District); and
  • motions for recusal of a hearing officer (Old Rochester Regional School District and Ludlow Public Schools).

This Commentary will focus on the decisions and on the first four categories of rulings listed above.

Pro se parent fails to carry the day in dispute over eligibility and placement

Newton Public Schools, BSEA #1408637, 21 MSER 104 (Figueroa, 6/5/15), concerned an 11-year-old sixth-grader diagnosed with a specific learning disability (dyslexia), ADHD, anxiety, and depression. The parent first sought to have her found eligible for special education in 2012. At a Team meeting held in May 2012, Newton found her ineligible. In September 2012, Newton placed her on a Section 504 plan. In April 2013, Newton found the student eligible on the basis of ADHD and anxiety. Although a developmental pediatrician had also diagnosed dyslexia, the district seems not to have agreed that she had a specific learning disability until September 2013.

Newton developed IEPs for the periods from April 2013 through April 2015 (fifth and sixth grades) providing the student with co-taught regular education classes and some pullout services. The parent rejected or partially rejected each of these IEPs. In December 2014, the parent began advocating for a change in placement to Newton's district-wide learning disabilities program ("DWLDP"). Newton contended that that program was not appropriate for the student.

At hearing, the pro se parent asserted that Newton had deprived the student of FAPE by: (1) committing various procedural violations in connection with its 2012 evaluation and eligibility determination; (2) failing to find the student eligible for special education in May 2012, instead of waiting until April 2013; and (3) failing to provide the student with appropriate IEPs and an appropriate placement from April 2013 to April 2015.1 The parent sought compensatory education in the form of placement in a specialized out-of-district program such as the Carroll School or the Landmark School. The district prevailed on all issues.

The hearing officer first considered the alleged procedural violations. She found that the district had committed some, but not all, of the violations that the parent asserted. Specifically, the hearing officer found that Newton:

  • failed to provide the parent with copies of the procedural safeguards in a timely manner;
  • failed to provide all of Newton's evaluation reports at least two days before the initial Team meeting;
  • failed to complete the Educational Assessment Parts A and B, and thus failed to provide it to the parent, until after that Team meeting; and
  • failed to complete a math assessment within the time required by the regulations.

The hearing officer concluded, however, that none of these violations "rose to the level of a deprivation of a FAPE," 21 MSER at 123, under the criteria set forth in 20 U.S.C. §1415(f)(3)(E)(ii). That statute permits a hearing officer to grant relief for a procedural violation only if the violation "impeded the child's right to a [FAPE]," "significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a [FAPE]," or "caused a deprivation of educational benefits."

Parents, especially those who proceed pro se, often find it difficult to understand how a district may commit a string of violations and suffer no consequences for its sloppiness (or, at worst, its deliberate indifference to parents' rights). This case serves as a reminder that parents should almost never place all of their eggs in the procedural basket. Hearing officers will frequently conclude, as in this case, that a procedural violation - or even a number of them - failed to constitute the type of serious deprivation required in order to grant relief under §1415(f)(3)(E)(ii). Parents must be prepared to demonstrate grave consequences from a district's procedural violation(s) in order to have any hope of success on a procedural claim.

Turning to the eligibility dispute, the hearing officer found no basis on which to conclude that the district should have found the student eligible before April 2013. The parent and her educational advocate (a family friend and former school principal) attempted to argue that Teams convened in May 2012 and September 2012 ignored information that would have rendered the student eligible earlier. The hearing officer found, however, that on each occasion the Team considered all relevant information that was then available, and that such information supported the conclusion that the student, although diagnosed with ADHD and executive functioning problems, was making effective progress and did not require specially-designed instruction.

The hearing officer pointed out that, as of September 2012, the student's independent neuropsychologist had not diagnosed the student with a specific learning disability. The neuropsychologist also then believed that the student was benefiting from participation in a co-taught classroom as a regular education student.

The hearing officer rejected the contrary opinions of the parent's educational advocate, finding that individual less than credible because she "lacked special education training and experience and is not certified in any area of special education." 21 MSER at 125. The hearing officer "[did] not credit her as an expert and [found] her opinions to be jaded by her personal relationship with Parent and Student." Id. at 127.

Hearing officers have warned on a number of occasions that when one individual attempts to serve both as advocate and as expert in the same case, that person's opinions will receive little or no weight. Here, the problem was compounded by the advocate's apparent lack of qualifications to serve as an expert in the field of special education at all. The parent, by adducing this witness's testimony, may have weakened her case or at the very least diverted attention from the testimony of other, more credible witnesses.

Lastly, the hearing officer considered whether Newton's proposed IEPs provided the student with FAPE. The hearing officer framed the issue as "whether Student was making meaningful effective progress in light of the totality of the circumstances in Student's life during the [relevant] time periods." 21 MSER at 127. Based on "objective testing conducted by Newton, MCAS results, the evaluations conducted by [two independent neuropsychologists at different times] (neither of whom recommended out-of-district placement for Student), progress reports, classroom observations and teacher reports," the hearing officer concluded that the student had made effective progress during the two years at issue, and thus that Newton's proposed IEPs and placements were appropriate. Id.

On the one hand, this conclusion is not surprising: without a recommendation for an out-of-district program from an independent neuropsychologist, the parent was unlikely to obtain an order requiring such a placement. On the other hand, the student's neuropsychologist and her therapist (both of whom the hearing officer found credible) recommended moving the student to a more specialized in-district setting, the DWLDP. Why did the hearing officer not order some relief? We think that the answer lies largely in the hearing officer's view of the "totality of the circumstances in Student's life," 21 MSER at 127, particularly regarding the sources of stress and anxiety in her life. The apparent responsiveness of the district to the parent's concerns seems also to have played a part.

As a major argument for lack of effective progress, the parent pointed to the student's anxiety, asserting that the student's emotional condition had deteriorated over the course of her fifth and sixth grade years due to stress from a school program that did not meet the student's academic needs. The student's therapist/psychologist testified to the student's emotional decline, attributing it to her school placement. The student's neuropsychologist, too, stated that by December 2014 that the student "appeared to be a different child," 21 MSER at 121, and that the neuropsychologist was "concerned that academic demands were taking an emotional toll on her." Id. The student's pediatrician and developmental pediatrician, on the other hand, opined that her anxiety "was caused by more than just school." Id. at 129.

Although the hearing officer found all four of these witnesses credible, she seems to have given more weight to the testimony of the two physicians, without explaining why she rejected the opinions of the therapist and neuropsychologist as to the cause of the student's anxiety. This is particularly noteworthy given that the two psychological experts might be expected to have more expertise in the field of anxiety (and in the case of the treating therapist, to have greater familiarity with the student's emotional state) than the two medical doctors. It is possible that the pro se parent did not have the ability to elicit her witnesses' opinions clearly, or that cross-examination muddied the waters and the parent did not clarify on redirect. In any event, the parent failed to carry her burden of proof on this issue.

What were the other factors to which the hearing officer pointed as causes of the student's anxiety? Among the "totality of the circumstances" that the hearing officer described, 21 MSER at 127, 129, were:

  • the student's participation in  competitive gymnastics;
  • a hand injury in late 2014, which "caused a serious set-back to [the student's] competitive gymnastic expectations," 21 MSER at 128;
  • the time demands of gymnastics and another extracurricular activity (choir);
  • two brief trials of ADHD medications that caused undesirable side effects;
  • the fact that the student had a new sibling; and
  • the fact that the student "was very much aware of the dispute surrounding her educational placement." Id. at 129.

To read this article in full, please click here.


1 The student's 2015-2016 IEP was not at issue in this proceeding.

This article was originally published in the Massachusetts Special Education Reporter, a Landlaw publication.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.