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.

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