The joy of a snow day… I get a chance to catch up on a blog posting that I have been meaning to write for a long time. Last June, 2017, New Hampshire implemented a significant number of changes to its regulations related to special education. The changes range from correcting minor typos and grammatical changes, to major changes. After comparing the current and prior regs, I wanted to highlight some of what I believe are the more important changes. This list is not intended to be a complete list of the changes. These changes are all specific to New Hampshire:
- Once you have been involved with the special education system for a while, you learn that the school district is supposed to evaluate a child initially as part of the special education eligibility consideration process, as well as at least every three years thereafter. However, the evaluation process was never defined. It is now. The following new reg has been added:
“Evaluation process” means the completion of initial evaluations, reevaluations and assessments, a written summary report, and a meeting of the IEP team to review the results of the evaluations and assessments. When the purpose of the meeting is to determine eligibility for special education and related services, the evaluation process also includes the determination of eligibility. Ed 1102.02(n).
- Related to the evaluation process, the length of time that the school district has to conduct the evaluation has been increased from 45 to 60 days. Ed 1107.01(c), (d). Under the old rules, the allowable time for evaluations could be extended by no more than 15 days, as long as both school district and parents agreed; the new rules now permit an extension of up to 30 days.
- The term “Health Evaluation” has been added and defined. The Health Evaluation is intended to provide the IEP Team with information on the student’s physical condition. Ed 1102.03(b).
- Related to Health Evaluations, the regs now define who is qualified to conduct such an evaluation:
“Professional licensed to provide a health evaluation” means anyone who, under their specific licensing, is qualified to provide a health evaluation. This may include, but is not limited to: a school nurse, a registered nurse, physician, psychiatrist, and naturopathic doctors. Ed 1102.04(m).
- Representatives of DCYF and appointed Guardians ad Litem (GAL) are now specifically defined as potential members of the IEP Team , under the category of “other individuals.” Ed 1103.01(c).
- Team meeting “invitations” are now referred to as “notices.” It is now defined that notices need to include “the purpose, time, location of the meeting and the identification of the participants.” Ed 1103.02(c).
- When a referral was made for special education consideration, it used to be that the Team needed to decide how to proceed regarding the referral within 15 days. That has now been changed to 15 business days. Ed 1106.01(d), (e).
- Home instruction can now be considered an “alternative placement.” Ed 1111.04(a).
- Under the previous regulations, if a school district made a proposal for something in the IEP that it believed was necessary for the child to receive his or her Free and Appropriate Public Education (FAPE), and if the parent refused to consent to that proposal, the school district was required to initiate a due process hearing. Ed 1120.05(f). The reality is that this almost never occurred. That requirement has been removed under the new regs.
- When a complaint is filed with the DOE which results in corrective action being required of the school district, the regs now allow 20 days for an appeal, versus what had been 10 days in the prior regs. The regs also clarify that during the appeal process, any changes that had been ordered as part of the initial complaint decision must be implemented pending the appeal. Ed 1121.04(a).
- Related to the complaint appeal process, the regs previously allowed the Commissioner 20 days to rule on the appeal; that has been shortened to 15 days. Ed 1121.04(b). The regs also now clarify that a further appeal may be made to the NH Supreme Court, or to a NH Superior Court. Ed 1121.04(c).
The Law Office of James M. Baron represents students and parents in special education and other school-related legal matters throughout Massachusetts and New Hampshire. Please visit http://www.lawbaron.com, or call 781-209-1166 for more information.
In special education disputes, the question sometimes comes up about how binding statements are from a Written Prior Notice (“WPN”), especially compared to an IEP. What if a key service or description is in the WPN, but not the IEP? Can the two documents be read together, to make them equally enforceable? A case recently decided by the First Circuit Court Of Appeals helps to answer these questions. Ms. M. v. Falmouth Sch. Dept., 847 F.3d 19 (1st Cir. 2017). Even though the case originated in Maine, because both Massachusetts and New Hampshire are also part of the First Circuit, the decision is binding throughout all three states (as well as Rhode Island and Puerto Rico).
Whenever a Team makes a decision to take or not take an action, it is supposed to issue a Written Prior Notice form describing the decision that was made, and why. 20 U.S.C. § 1415(b)(3); 20 U.S.C. § 1415(c)(1) . Federal law and New Hampshire refer to this as a Written Prior Notice or Prior Written Notice; Massachusetts refers this as an N1 Form. Assuming any changes are going to be made, an IEP follows the WPN. The IEP is what parents are used to signing, by accepting, partially accepting, or rejecting the document. The IEP becomes the contract between the parents and the school district, at least in terms of whatever is agreed to in the IEP.
The Ms. M. case concerned a 12-year-old girl (“O.M.”) diagnosed with Down Syndrome and Attention Deficit Hyperactivity Disorder, attending school in Falmouth, Maine. In October 2013, the school district issued a WPN in which the district proposed “the introduction of a structured reading program to [O.M.]’s IEP.” Ms. M., 847 F.3d at 23. After Ms. M. expressed dissatisfaction with various aspects of the district’s proposal, the district, on November 5, 2013, issued a new WPN, in which it “‘proposed’ to provide O.M. with 60 minutes of daily SPIRE instruction.” Id. Ms. M. responded on November 14, 2013 by writing to the school district stating that she had identified several errors in the WPN, and did not believe that SPIRE was appropriate, because according to Ms. M., SPIRE was not a research-based program. Ms. M clarified her position when she wrote that she was “‘NOT in agreement with the proposal to use [SPIRE] for [O.M.]'” Id. The resulting IEP did not identify or discuss SPIRE, and instead stated that Falmouth would provide O.M. with eight hours and forty-five minutes of specially designed instruction in literacy and math per week. On April 17, 2014, Ms. M notified the school district that her daughter would start to receive private tutoring sessions in a different structured reading program called Lindamood Phoneme Sequencing (“LiPS”). On May 1, 2014, at a Team meeting, Falmouth notified Ms. M that they were declining her request to provide O.M. with LiPS instruction, and again agreed to provide her with SPIRE instead, though not until the following school year. Id. at 23 – 24.
In June 2014, Ms. M filed for due process. Ms. M., 847 F.3d at 24. The hearing officer ruled in Ms. M.’s favor, determining that the contents of the October 31st WPN were part of the IEP. The hearing officer also determined that since the combined documents called for SPIRE instruction, Falmouth had violated the IEP by not providing her with such instruction. However, the hearing officer also ruled that the failure was merely a procedural violation and had not harmed O.M. educationally, and therefore FAPE was not denied. Id. at 24 – 25.
Ms. M. then appealed to federal court. Ms. M., 847 F.3d at 25. A magistrate judge supported the findings of the hearing officer. The case then proceeded to district court, which disagreed with the magistrate judge and hearing officer in terms of whether the violation was substantive or merely procedural. The court found that the violation was material, and entered a judgment of $4,111.25 in favor of Ms. M., reflecting the cost of the LiPS tutoring for 3 1/2 months. Id.
The case then proceeded to the First Circuit Court of Appeals, which reversed the lower courts. The First Circuit agreed with Falmouth’s argument that “SPIRE… was never part of O.M.’s IEP because the IEP team only mentioned its use in the Written Prior Notice generated after the October 31st meeting, a document which proposed, but did not promise, that the School Department would provide specific educational programs to O.M.” Ms. M. at 25. The court stated that although the WPN might contain more specific terms than the IEP, those terms are intended as proposals, and are “not binding.” Id. at 28.
The court did identify an exception that would allow the WPN to be read with some binding authority. Specifically, if a term in the IEP is ambiguous, the WPN can be referenced for help clarifying the ambiguity. Ms. M. at 28.
As one last aside, it is valuable to point out how important it is for both parents and school districts to be reasonable when dealing with each other. In this case, the parent told the school district that she was opposed to SPIRE, yet then proceeded to bring a due process case for the district’s failure to implement SPIRE, even though SPIRE was never in an IEP. Regardless of whether the WPN and IEP could be read together to create a binding set of services, it does not seem reasonable for a parent to bring a due process case, trying to fault the district for failing to implement the program to which the parent was opposed. That is litigation that should never occur.
In summary, based on the Ms. M. case, parents in the First Circuit (including Massachusetts and New Hampshire) should not assume that a WPN is binding, or that the WPN should be read together with an IEP. The WPN should be looked as a set of proposals that are not binding until the details are in the IEP, and the IEP is agreed to by both district and parents. If parents do not see what they are looking for in an IEP, the first step should be to ask the school district to correct the error. If the district refuses, then the parent should document their position, which would typically be done through a rejection (partial or full, depending on the circumstances).
The Law Office of James M. Baron represents students and parents in special education and other school-related legal matters throughout Massachusetts and New Hampshire. Please visit http://www.lawbaron.com, or call 781-209-1166 for more information.
In Massachusetts, when it comes to the provision of educational services for students who cannot attend school for medical reasons, notes from nurse practitioners now hold just as much weight as notes from physicians. Although the Massachusetts special education regulations have not yet been changed to reflect this new reality, there is a new statute in effect to support this equal weighting.
Under Massachusetts special education regulations, when a School Principal receives a note from a physician verifying that an enrolled student must remain in a hospital or at home for medical reasons for 14 or more school days, that principal must arrange for the provision of educational services in the hospital or home environment.603 CMR 28.03(3)(c). The purpose of the hospital or home educational services is to ensure that the student continues his or her educational program, even though the student is unable to physically be present at school. Although the principal is supposed to coordinate provision of the services with the Administrator of Special Education, such services should not be considered to be special education services, unless the student has already been determined eligible for such services. Id. The law is very clear that the note must be from a physician (e.g. “Upon receipt of a physician’s written order verifying that any student enrolled in a public school…” Id.).
In 2012, the Massachusetts legislature amended the scope of authority granted to nurse practitioners, clarifying that when a “law or rule requires a signature, certification, stamp, verification, affidavit or endorsement by a physician, when relating to physical or mental health, that requirement may be fulfilled by a nurse practitioner …” MGL c. 112 § 80I. Thus, even though the special education regulation specifically refers to the need for a physician’s written order, a nurse practitioner’s written order will equally suffice.
This issue recently came up in a due process hearing decision issued by the Massachusetts Bureau of Special Education Appeals (BSEA). In a 2016 case involving the Lenox Public Schools, the parents of a special education student presented a nurse practitioner’s note to the school district, excusing the student from school for more than two weeks. In Re: Lenox Public Schools and Halsey, 22 MSER 117 (Mass. Bur. of Spec. Educ. App. 2016). A little more than two weeks later, the parents submitted a second note, this time from a physician. In response to Lenox’s argument that the nurse practitioner did not have the necessary authority to justify provision of home / hospital services under 603 CMR 28.03(3)(c), BSEA Hearing Officer Lindsay Byrne referred to the new Massachusetts statute when she stated in her decision that “Lenox could not properly decline to accept the nurse practitioner’s medical excuse for Halsey’s absence on the basis of lack of authority.” Lenox, 22 MSER at 119. Even though the nurse practitioner did have proper authority to request home / hospital services, her note was found to be faulty for other reasons. For example, the Hearing Officer stated that the note “does not address the regulatory criteria required to support a request for home instruction such as a medical diagnosis and a description of how the student’s health condition affects the delivery of education services in the school and in the home.” Id. The follow-up note from the physician had proper authority, and was valid in its content, as well. Id.
It is also worthwhile to point that even though a note from a physician or nurse practitioner might be completely valid and sufficient to require home / hospital educational services, the school district still has a right, and might even have a responsibility, to make further inquiries of the health care providers and seek additional medical information. The purpose of such inquiries cannot be to delay or prevent the home / hospital services. Instead, the school district might need such additional information to ensure that its educational services are appropriate given the student’s diagnosis and medical needs. Id.
In conclusion, thanks to a Massachusetts law implemented in 2012, a nurse practitioner, through proper notification, can provide the necessary authority for a student to receive home or hospital educational services from a school district.
The Law Office of James M. Baron represents students and parents in special education and other school-related legal matters throughout Massachusetts and New Hampshire. Please visit http://www.lawbaron.com, or call 781-209-1166 for more information.
Can / should / must a special education Team specify a teaching methodology in an IEP? More specifically, if a student with Autism Spectrum Disorder (ASD) requires Applied Behavior Analysis and Discrete Trial Training (ABA / DTT) in order to make effective progress, should the Team include the ABA/DTT methodology in the IEP? Must the Team include ABA/DTT in the IEP?
The very definition of the term Special Education would seem to indicate that IEP’s can and should name specific methodologies. Both federal and New Hampshire law define “Special Education” as “specially designed instruction, at no cost to the parents, to meet the unique needs of a child with a disability….” 34 CFR 300.39(a)(1); Ed 1102.05(c). Specially Designed Instruction is then defined as:
(3) Specially designed instruction means adapting, as appropriate to the needs of an eligible child under this part, the content, methodology, or delivery of instruction–
(i) To address the unique needs of the child that result from the child’s disability…
34 CFR 300.39(b)(3); Ed 1102.05(c). In Massachusetts, the definition is slightly different: “Special education shall mean specially designed instruction to meet the unique needs of the eligible student or related services necessary to access the general curriculum and shall include the programs and services set forth in state and federal special education law.” 603 CMR 28.02(20).
Guidance provided by the federal Department of Education states, “if an IEP Team determines that specific instructional methods are necessary for the child to receive FAPE, the instructional methods may be addressed in the IEP.” 71 FR 46665 (2006). On the other hand, that same guidance also states, “There is nothing in the Act that requires an IEP to include specific instructional methodologies… The Department’s longstanding position on including instructional methodologies in a child’s IEP is that it is an IEP Team’s decision.”
But what if the Team makes the wrong decision? What if a child requires a specific methodology in order obtain a meaningful benefit from their educational program? Surely the courts can help, right? Not necessarily. The U.S. Supreme Court has stated that
[C]ourts must be careful to avoid imposing their view of preferable educational methods upon the States. The primary responsibility for formulating the education to be accorded a handicapped child, and for choosing the educational method most suitable to the child’s needs, was left by the Act to state and local educational agencies in cooperation with the parents or guardian of the child.
Board of Educ. v. Rowley, 458 U.S. 176 (1982). So, parents should not expect a court to overrule methodology choices made by IEP Teams.
Luckily for parents, though, the administrative agencies in each state which adjudicate special education matters are not part of the state or federal court systems. They are, in fact, administrative bodies of state governments. The difference might seem minor, but it is, in fact, very important. Notice that Rowley does not leave the methodology decision just to the IEP Team (i.e. the “local educational agenc[y]). Instead, it leaves the decision to “state and local educational agencies…” Furthermore, the decision must be made “in cooperation with the parents or guardian of the child.” In New Hampshire, special education disputes are not initially adjudicated in the court systems; they are adjudicated by the New Hampshire Department of Education. Similarly, in Massachusetts, the administrative body that hears special education disputes is called the Bureau of Special Education Appeals (BSEA), which is part of the Massachusetts Department of Administrative Law Appeals (DALA).
Courts have even recognized the difference in knowledge and expertise between the state administrative law judges / hearing officers and judges within the state or federal court systems. For example, in Deal v. Hamilton County Bd. of Educ., 392 F.3d 840 (6th Cir. 2004), it was stated,
[T]he ALJ is a representative of the state presumed to have both the educational expertise and the ability to resolve questions of educational methodology that the federal courts do not have. While the district court always is required to give due deference to administrative findings in an IDEA case, even greater weight is due to an ALJ’s determinations on matters for which educational expertise is relevant.
Id. at 865.
New Hampshire Case Law
I recently litigated a case in New Hampshire which dealt with the issue of whether an IEP of a student on the autism spectrum should be updated to reflect the need for the ABA/DTT methodology. Student v. School District, IDPH-FY-16-02-020 (NH Dept. of Educ. May 9, 2016). The result was very positive for the parents. In this case, it was well documented through private evaluations and reports that a kindergarten student with very limited verbal skills required ABA/DTT in order to learn. The student’s neuropsychological evaluation stated that the student required a minimum of 25 to 30 hours of individualized, ABA/discreet trial based therapy per week, with placement in a full-time, full-year program utilizing 1:1 ABA, with staff being ABA-trained and BCBA supervised.
The school district even recognized the importance of ABA/DTT for the student. For example, Team meeting notes documented that the student was “rapidly gaining skills during ABA in a structured one-on-one setting.” A Written Prior Notice documented, “The team recognizes that [Student] has benefited from discrete trial instruction by a trained therapist with oversight by a BCBA… [Student] is acquiring skills rapidly in a one-to-one setting using ABA and Discreet Trial Methodologies.” Perhaps most importantly, the district’s program actually included ABA/DTT, as well as other methodologies.
Despite such clear evidence, and even admission by the school district, about the need for Applied Behavior Analysis / Discrete Trial Training, the school district refused to commit to any ABA/DTT services in the IEP Service Delivery Grid. In order to ensure that the student received the required services, the parents kept the student at home, arranged for full-time private ABA/DTT services at home, and eventually filed for a due process hearing.
The hearing officer differentiated this case from other methodology cases by clarifying that this was not a dispute about the need for ABA/DTT. The district admitted that the student needed ABA/DTT, and even admitted that the program included some ABA/DTT. Instead, this was a case about the Team refusing to document the need for ABA/DTT within the IEP. In his decision, the hearing officer stated:
[T]he dispute here is more about the school district’s reluctance to put specific language in an IEP about a service and a particular methodology that the Team agreed would be provided. The school members of the IEP team did not want to include any specific amount of ABA/DTT services in the IEP because they did not want to “tie their hands” and it was “not good practice” to include methodology in an IEP. That led to uncertainty about how much and what kind of special education services the student would receive.
While the cases say that methodology does not have to be included, they do not say that it cannot be included. There is nothing in the law that would prohibit the school from including a methodology in an IEP. Methodology is part of the definition of special education and specialized instruction in the IDEA and its regulations, 34 CFR § 300.30(b)(3), and it seems that it should be part of the listing of the amounts of special education services a student will receive when part of those services will knowingly be from some method like ABA/DTT… [I]f a team agrees that a student requires ABA/DTT services, which it did here, those services should be included in the IEP.
Id. The Massachusetts Bureau of Special Education Appeals (BSEA) has established similar case law. For example, in the case In Re: Middleborough Public Schools, 9 MSER 244 (2003), the school district raised similar arguments as the NH case just described. “The School argues that this is purely a question of methodology, that the choice of educational methodologies belongs solely to the school, and cannot be dictated by Parents or a hearing officer.” Id. The hearing officer stated that the school district was taking a general principle and carrying it too far. While it is true that courts generally defer to educators on the issue of methodology, this general principle does not apply when the IEP itself is inappropriate. Interestingly, the hearing officer got even more specific regarding ABA/DTT methodology, when she stated,
Additionally, courts seem to address ABA/DTT differently from other methodology disputes. In numerous cases courts have held that there is a “window of opportunity” for children with PDD/autism spectrum disorders to develop language and behavioral skills. If the evidence—including expert testimony– shows that ABA/DTT is necessary for FAPE during that window, courts have ordered schools to provide it. See, e.g., T.H. v. Palatine , supra.
Educators, collaborating with parents and guardians, generally determine methodology. If a specific methodology is necessary for a student to receive a Free and Appropriate Public Education (FAPE), that methodology should – and I would argue must – be included in the IEP. Courts generally will not overrule the methodology decisions of school districts. However, the administrative bodies that adjudicate special education cases are not part of the court system; they are considered part of the “state educational agency” as described in Rowley. Hearing officers have expertise in educational matters, and while they may generally defer to the “local educational agencies,” they do have the right and responsibility to override a methodology decision if such methodology is required for FAPE.
When you have been harmed, and you need to take legal action against another party, you probably think of a lawsuit between a plaintiff and defendant. But what if you, as the plaintiff, cannot get complete relief from taking action against just one party? Or what if the relief sought by the plaintiff would result in an unfair burden placed on the defendant? In those types of cases, it might be necessary to “Join” a third party, thereby making that third party part of the lawsuit.
For matters dealing with special education, a due process hearing is the equivalent of a lawsuit in court. Each state has its own administrative body which adjudicates due process hearings. In Massachusetts, the administrative body is called the Bureau of Special Education Appeals (“BSEA”). The BSEA Hearing Rules for Special Education Appeals list factors that a Hearing Officer should consider when a request is made to join a third party (See BSEA Hearing Rule 1(J) in the above link).
The factors defined in Rule 1(J) are:
- The risk of prejudice to the present parties in the absence of the proposed party;
- The range of alternatives for fashioning relief;
- The inadequacy of a judgment entered in the proposed party’s absence; and
- The existence of an alternative forum to resolve the issues.
Two recent rulings from the BSEA provide excellent examples of how a Hearing Officer applies the above factors to a real-life situation. In the case of Student v. North Middlesex Regional School District & Department of Children and Families (22 MSER 156 (2016)), the parents filed a BSEA due process hearing request against both the school district (“NMR”) and the Department of Children and Families (“DCF”) seeking a six month residential placement to address the student’s chronic stress. DCF believed that it should not be joined as a party, and filed a Motion to Dismiss. The school district, on the other hand, was opposed to removing DCF as a joined party.
Hearing Officer Rosa Figueroa ruled in favor of the parents and the school district in denying DCF’s Motion to Dismiss. Although DCF did not have care or custody of the student, it did provide a Treatment Plan and also arranged for a neuropsychological evaluation of the student, so there was a pre-existing relationship between the student and DCF. The hearing decision documents the school district’s argument:
NMR argued that the scope of the Hearing therefore involves not only Student’s need for residential placement but also: a) whether her current private day placement offers her a FAPE; b) whether Student requires additional in-home or residential services; (3) whether those in-home or residential services would be educational in nature; and d) if not educational in nature, whether DCF is responsible to provide them. Moreover, according to NMR, given that Student and her family are currently receiving services under a Treatment Plan Document (June 1, 2016 Treatment Plan Document) it would appear that any difficulty experienced by Student in the home is attributable to the home environment rather than unmet educational needs, therefore, a private day placement for Student would suffice to offer her a FAPE in the least restrictive environment. Since a determination of the need for residential placement and/or home wrap-around services, as well as whether such services would be for educational reasons may involve orders against NMR and DCF, the BSEA would be unable to fashion the necessary remedies in the absence of DCF. Lastly, NMR argued that administrative efficiency could only be assured by maintaining DCF as a party.
22 MSER 156 (2016). Hearing Officer Figueroa agreed that “the existence of an active and comprehensive Treatment Plan establishes enough of a relationship to allow the BSEA to order non-residential services (such as additional home-based or therapeutic services) consistent with DCF’s rules and regulations, that are necessary to enable Student to receive a FAPE.” Id. In other words, since there was at least a possibility that DCF’s services might be needed in order for the student to be able to receive her Free and Appropriate Public Education (“FAPE”), DCF needed to stay involved as a joined party in the case.
It is important to realize that the ruling against DCF’s Motion to Dismiss does not mean that the parents won their residential placement. This Motion was just one aspect of the larger overall litigation. The decision simply kept DCF involved as part of the case.
In the second case, Student & Natick Public Schools (22 MSER 159 (2016)), the result was the exact opposite (DCF was not joined), but for reasons that are very much in line with the North Middlesex case. In Natick, it was the parent who tried to join DCF “because she asserts that DCF was ‘complicit’ with alleged actions by Natick that Parent believes deprived Student of a free, appropriate public education (FAPE) and created a ‘hostile environment’ within the Natick Public Schools. Parent’s position is that… DCF (among others) collaborated with Natick to deprive Student of her rights.” 22 MSER 159 (2016).
The facts in Natick show that Natick did apply for a Child Requiring Assistance (CRA) petition with the Juvenile Court. Natick also filed a 51A report with DCF because of concerns about the students school attendance. However, the student was never under DCF care or custody, DCF did not have an open case on the student or her family, and DCF was not providing any services to student or the family.
Hearing Officer Sara Berman provided an excellent summary of the factors that a Hearing Officer considers in determining joinder:
In general, factors that hearing officers consider in determining whether the criteria of 603 CMR 28.08(3) and Rule I.J have been met include the following:
- The student’s eligibility for services from the agency;
- status (or lack thereof) as a current client of the agency;
- length and degree of involvement that the agency already has with the student, if any;
- likelihood that the evidence at hearing will show that the student needs services that only are available from the agency to benefit from special education, that the agency has refused or failed to provide such services, and that no appropriate forum exists to contest the agency’s decision;
- likelihood that an order to the school district alone will provide the student with FAPE;
- administrative efficiency of joining a potentially responsible state agency early in the proceeding.
On the other hand, the BSEA has declined to join human services agencies in situations where the agency has found the student ineligible or has not determined eligibility under its own regulations, where the student is eligible only for minimal services from the agency, or where agency involvement in the future is theoretically possible but speculative.
22 MSER 159 (2016). The Hearing Officer concluded:
DCF should not be joined as a party in the instant case because none of the criteria for joinder listed in the “Legal Frameworks” section of this Ruling have been met. Student is not a current client of DCF. She is not in DCF care or custody, voluntary or otherwise, and receives no DCF services. Moreover, Parents seek no DCF services for Student and/or their family now, and there is no evidence in the parties submissions that they intend to do so in the future… [C]omplete relief, i.e. all relief sought by Parent from the BSEA, can be granted without DCF as a party. There is no risk of prejudice to any existing party if DCF is not joined because there is no remedy that the BSEA can order against DCF.
Id. Through these two cases, we can see how a very similar approach and analysis resulted in polar opposite decisions because the facts of the cases were so different.
The Individuals with Disabilities Education Act (“IDEA”) requires that an eligible child receive a free appropriate public education (“FAPE”) in the least restrictive environment (“LRE”) (20 U.S.C. § 1401(9); 20 U.S.C. § 1406(2)). Although special education includes a wide spectrum of available services, ranging from minor adjustments in the child’s mainstreamed class to a complete residential placement, the goal of special education is to keep the child as mainstreamed as possible. An out-of-district residential placement is considered more restrictive than an out-of-district day placement, which in turn is considered more restrictive than a public school placement with pullouts for various services, which in turn is considered more restrictive than a public school placement in the general education classroom.
However, this all depends on the needs of the child. If the Team agrees that a student needs special education services, can a non-special education school suffice? This was the issue decided very recently by the Massachusetts Bureau of Special Education Appeals (“BSEA”) in the case of In re: Curt and West Boylston Public Schools – BSEA # 15-08235.
In this case, the student, who was diagnosed with a Language Based Learning Disabiity (“LBLD”), attended the Carroll School through the ninth grade, which is the highest grade available at Carroll. The Team agreed that Landmark School, which is another school that specializes in LBLD, would be appropriate for Curt for high school. However, attending Landmark would have meant a commute of over one hour from West Boylston.
Curt’s parents pointed to 603 CMR 28.06(8)(a), which guides Teams against commutes of over an hour. This regulation states, “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.” To avoid this commuting problem, the school district even offered to pay for a residential placement.
Parents were not thrilled with either a long commute OR a residential placement at Landmark, so they requested a placement at school district expense at one of two private general education schools: The Winchendon School or Chapel Hill – Chauncy Hall. When West Boylston refused both placements, parents made a unilateral placement of Curt at the Winchendon School, and then filed a hearing request with the BSEA.
The Hearing Officer, Ray Oliver, found in favor of the school district. His reasoning was that if the Team agreed that Curt required a special education placement, a general education placement would not be appropriate. It would not provide the student with the services that he needed. Therefore, between the choices of a distant special education school or a nearby general education school, the distant special education school would be where the student could get his FAPE in the LRE. The Hearing Officer also stated that the regulation regarding commuting time “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.” Although a residential placement would be more restrictive than a day placement, it would at least allow the required IEP services to be implemented, whereas that would not be possible at a regular education school.
Stay put is the mechanism intended to ensure stability for students while parents and school districts work out their disputes. Under 20 U.S.C. §1415(j), “during the pendency of any proceedings conducted pursuant to this section, unless the State or local educational agency and the parents otherwise agree, the child shall remain in the then-current educational placement of the child…” Similarly, in Massachusetts, under 28 CMR 28.08 (7), “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.” New Hampshire’s stay put regulation is Ed. 1123.23.
So, what happens if a student is in an out-of-district placement, which the parent approves of, but the school district wins at due process for a different placement, and the parent appeals to federal court? This was the scenario in a recent decision handed down by the Massachusetts Bureau of Special Education Appeals. In the case of In Re: Boston Public Schools v. Student – BSEA # 15-03083 & BSEA # 14-01653, a Boston student was attending the READS Collaborative, pursuant to a prior stay put decision of the BSEA. Boston then filed for a hearing, asking the BSEA to rule that its proposed placement at a different school – the Horace Mann School – was appropriate for the student. Boston won that due process hearing. Ordinarily, this would mean that the student would need to start attending the Horace Mann School instead of READS. However, the Parent in this case appealed to the U.S. District Court.
The dispute then became the issue of what the stay put placement should be. The Parent claimed that stay put should be READS, since that was the then-current placement of the student. Boston argued that stay put should be the Horace Mann School, since that was the decision of the BSEA hearing officer.
Hearing Officer Rosa Figueroa ruled in favor of the Parent. The reasoning for this decision was that the students then-current placement was indeed the READS Collaborative. Even though Boston won the case at the BSEA in favor of the Horace Mann School, the the fact that the Parent appealed the case to U.S. District Court meant that they were still legal proceedings that were pending. To ensure stability for the student, the hearing officer maintained READS as stay put while the dispute worked its way through the system.
The best teachers teach their students that they should never stop learning. I remember my favorite teachers reinforcing that. My father, who was a public school teacher and principal for 35 years, also taught that to me. As a lawyer, I love learning from other lawyers and advocates – new tips, new ways of thinking about issues, new procedures, new laws, new approaches, etc. With this in mind, I am currently attending the annual conference of the Council of Parent Attorneys and Advocates (COPAA) in San Diego. It is four solid days of interacting with colleagues from around the country and learning from the best in the field.
Today, I attended an all day session entitled “OCR, 504, ADA and Making the Most of Your Civil Rights.” Just as the name implies, we spent all day dealing with alternatives to the standard special education due process procedure. When most people think of a Free Appropriate Public Education (FAPE), they think of special education and IDEA. But Section 504 also has a FAPE standard. Bullying and disability discrimination can be a basis for denial of FAPE under Section 504. Another interesting tidbit we discussed today was that when it comes to communication devices, in the decision about which devices are appropriate, the ADA gives primary consideration to the preference of the individual with a disability. 28 CFR 35.160. In fact, the public school must honor the choice of the student with a disability unless they can prove that an alternative would be just as effective. IDEA does not contain this “equally effective” standard, but the ADA does. This is just the tip of the iceberg – many of the rights granted to students and parents by Section 504 and the ADA can be just as powerful, if not more powerful, then those granted under special education law. We also spent a good deal of time talking about restraints, seclusion, OCR complaints, and OCR mediation.
Tomorrow will be another all-day session entitled “Assessment Boot Camp: Understanding Tests and Measurements.” Saturday and Sunday will consist of several shorter sessions dealing with a plethora of subjects. I also will have the honor of presenting a session designed to help attorneys who are running their own special education law practice (i.e. the things that special education attorneys need to think about when they run their own practice versus working for somebody else).
This is now my fourth annual national COPAA conference. In each of these conferences, I have come away with so many new ideas and approaches to help me advocate successfully for my clients.
Medically speaking, there are countless types of disabilities. Educationally speaking, the number disability categories is much more limited. What sometimes causes confusion and frustration for parents and school personnel alike is that the definition of disabilities under state and federal laws differs from the medical definitions used by doctors under the DSM-5 manual.
For a child in Massachusetts to qualify for an IEP, he or she must have at least one of the following specifically defined types of disabilities: Autism, Developmental Delay, Intellectual Impairment, Sensory Impairment (Hearing Impairment or Deaf, Vision Impairment or Blind, Deafblind), Neurological Impairment, Emotional Impairment, Communication Impairment, Physical Impairment, Health Impairment, or Specific Learning Disability. 603 CMR 28.02(7). Although this might seem like a very limited list of disabilities, they are, in fact, very broad categories that cover a wide variety of conditions. The specific definitions under Massachusetts education law are as follows:
(a) Autism – A developmental disability significantly affecting verbal and nonverbal communication and social interaction. The term shall have the meaning given it in federal law at 34 CFR §300.8(c)(1).
(b) Developmental Delay – The learning capacity of a young child (3-9 years old) is significantly limited, impaired, or delayed and is exhibited by difficulties in one or more of the following areas: receptive and/or expressive language; cognitive abilities; physical functioning; social, emotional, or adaptive functioning; and/or self-help skills.
(c) Intellectual Impairment – The permanent capacity for performing cognitive tasks, functions, or problem solving is significantly limited or impaired and is exhibited by more than one of the following: a slower rate of learning; disorganized patterns of learning; difficulty with adaptive behavior; and/or difficulty understanding abstract concepts. Such term shall include students with mental retardation.
(d) Sensory Impairment – The term shall include the following:
Hearing Impairment or Deaf – The capacity to hear, with amplification, is limited, impaired, or absent and results in one or more of the following: reduced performance in hearing acuity tasks; difficulty with oral communication; and/or difficulty in understanding auditorally-presented information in the education environment. The term includes students who are deaf and students who are hard-of-hearing.
Vision Impairment or Blind – The capacity to see, after correction, is limited, impaired, or absent and results in one or more of the following: reduced performance in visual acuity tasks; difficulty with written communication; and/or difficulty with understanding information presented visually in the education environment. The term includes students who are blind and students with limited vision.
Deafblind – Concomitant hearing and visual impairments, the combination of which causes severe communication and other developmental and educational needs.
(e) Neurological Impairment – The capacity of the nervous system is limited or impaired with difficulties exhibited in one or more of the following areas: the use of memory, the control and use of cognitive functioning, sensory and motor skills, speech, language, organizational skills, information processing, affect, social skills, or basic life functions. The term includes students who have received a traumatic brain injury.
(f) Emotional Impairment – As defined under federal law at 34 CFR §300.8(c)(4), the student exhibits one or more of the following characteristics over a long period of time and to a marked degree that adversely affects educational performance: an inability to learn that cannot be explained by intellectual, sensory, or health factors; an inability to build or maintain satisfactory interpersonal relationships with peers and teachers; inappropriate types of behavior or feelings under normal circumstances; a general pervasive mood of unhappiness or depression; or a tendency to develop physical symptoms or fears associated with personal or school problems. The determination of disability shall not be made solely because the student’s behavior violates the school’s discipline code, because the student is involved with a state court or social service agency, or because the student is socially maladjusted, unless the Team determines that the student has a serious emotional disturbance.
(g) Communication Impairment – The capacity to use expressive and/or receptive language is significantly limited, impaired, or delayed and is exhibited by difficulties in one or more of the following areas: speech, such as articulation and/or voice; conveying, understanding, or using spoken, written, or symbolic language. The term may include a student with impaired articulation, stuttering, language impairment, or voice impairment if such impairment adversely affects the student’s educational performance.
(h) Physical Impairment – The physical capacity to move, coordinate actions, or perform physical activities is significantly limited, impaired, or delayed and is exhibited by difficulties in one or more of the following areas: physical and motor tasks; independent movement; performing basic life functions. The term shall include severe orthopedic impairments or impairments caused by congenital anomaly, cerebral palsy, amputations, and fractures, if such impairment adversely affects a student’s educational performance.
(i) Health Impairment – A chronic or acute health problem such that the physiological capacity to function is significantly limited or impaired and results in one or more of the following: limited strength, vitality, or alertness including a heightened alertness to environmental stimuli resulting in limited alertness with respect to the educational environment. The term shall include health impairments due to asthma, attention deficit disorder or attention deficit with hyperactivity disorder, diabetes, epilepsy, a heart condition, hemophilia, lead poisoning, leukemia, nephritis, rheumatic fever, and sickle cell anemia, if such health impairment adversely affects a student’s educational performance.
(j) Specific Learning Disability – The term means a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, that may manifest itself in an imperfect ability to listen, think speak, read, write, spell, or to do mathematical calculations. Use of the term shall meet all federal requirements given in federal law at 34 CFR §§300.8(c)(10) and 300.309.
New Hampshire and Federal Education Law
Unlike Massachusetts, New Hampshire education law simply defers to the federal educational definitions of disability, but then adds two more categories not found in the federal law. The federal special education disability categories are as follows: mental retardation, a hearing impairment (including deafness), a speech or language impairment, a visual impairment (including blindness), a serious emotional disturbance (referred to in this part as “emotional disturbance”), an orthopedic impairment, autism, traumatic brain injury, an other health impairment, a specific learning disability, deaf-blindness, or multiple disabilities, and who, by reason thereof, needs special education and related services. 34 CFR 300.8. The extensive definitions are as follows:
(i) Autism means a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age three, that adversely affects a child’s educational performance. Other characteristics often associated with autism are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences.
(ii) Autism does not apply if a child’s educational performance is adversely affected primarily because the child has an emotional disturbance, as defined in paragraph (c)(4) of this section.
(iii) A child who manifests the characteristics of autism after age three could be identified as having autism if the criteria in paragraph (c)(1)(i) of this section are satisfied.
(2) Deaf-blindness means concomitant hearing and visual impairments, the combination of which causes such severe communication and other developmental and educational needs that they cannot be accommodated in special education programs solely for children with deafness or children with blindness.
(3) Deafness means a hearing impairment that is so severe that the child is impaired in processing linguistic information through hearing, with or without amplification that adversely affects a child’s educational performance.
(i) Emotional disturbance means a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a child’s educational performance:
(A) An inability to learn that cannot be explained by intellectual, sensory, or health factors.
(B) An inability to build or maintain satisfactory interpersonal relationships with peers and teachers.
(C) Inappropriate types of behavior or feelings under normal circumstances.
(D) A general pervasive mood of unhappiness or depression.
(E) A tendency to develop physical symptoms or fears associated with personal or school problems.
(ii) Emotional disturbance includes schizophrenia. The term does not apply to children who are socially maladjusted, unless it is determined that they have an emotional disturbance under paragraph (c)(4)(i) of this section.
(5) Hearing impairment means an impairment in hearing, whether permanent or fluctuating, that adversely affects a child’s educational performance but that is not included under the definition of deafness in this section.
(6) Mental retardation means significantly subaverage general intellectual functioning, existing concurrently with deficits in adaptive behavior and manifested during the developmental period, that adversely affects a child’s educational performance.
(7) Multiple disabilities means concomitant impairments (such as mental retardation-blindness or mental retardation-orthopedic impairment), the combination of which causes such severe educational needs that they cannot be accommodated in special education programs solely for one of the impairments. Multiple disabilities does not include deaf-blindness.
(8) Orthopedic impairment means a severe orthopedic impairment that adversely affects a child’s educational performance. The term includes impairments caused by a congenital anomaly, impairments caused by disease (e.g., poliomyelitis, bone tuberculosis), and impairments from other causes (e.g., cerebral palsy, amputations, and fractures or burns that cause contractures).
(9) Other health impairment means having limited strength, vitality, or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that–
(i) Is due to chronic or acute health problems such as asthma, attention deficit disorder or attention deficit hyperactivity disorder, diabetes, epilepsy, a heart condition, hemophilia, lead poisoning, leukemia, nephritis, rheumatic fever, sickle cell anemia, and Tourette syndrome; and
(ii) Adversely affects a child’s educational performance.
(10) Specific learning disability.
(i) General. Specific learning disability means a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, that may manifest itself in the imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculations, including conditions such as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia.
(ii) Disorders not included. Specific learning disability does not include learning problems that are primarily the result of visual, hearing, or motor disabilities, of mental retardation, of emotional disturbance, or of environmental, cultural, or economic disadvantage.
(11) Speech or language impairment means a communication disorder, such as stuttering, impaired articulation, a language impairment, or a voice impairment, that adversely affects a child’s educational performance.
(12) Traumatic brain injury means an acquired injury to the brain caused by an external physical force, resulting in total or partial functional disability or psychosocial impairment, or both, that adversely affects a child’s educational performance. Traumatic brain injury applies to open or closed head injuries resulting in impairments in one or more areas, such as cognition; language; memory; attention; reasoning; abstract thinking; judgment; problem-solving; sensory, perceptual, and motor abilities; psychosocial behavior; physical functions; information processing; and speech. Traumatic brain injury does not apply to brain injuries that are congenital or degenerative, or to brain injuries induced by birth trauma.
(13) Visual impairment including blindness means an impairment in vision that, even with correction, adversely affects a child’s educational performance. The term includes both partial sight and blindness.
New Hampshire specifically references the federal definition (Ed 1102.01(t)(1)), but then also includes developmental delays and acquired brain injury as two additional categories. Ed 1102.01(t)(2 – 3).
The Massachusetts Legislature recently passed the Autism Omnibus Bill. Massachusetts Advocates for Children, which provided vital advocacy in support of the Bill, has summarized the key provisions as follows:
- A requirement that MassHealth cover medically necessary treatments for children with ASD who are under 21 years old – including ABA therapies as well as dedicated and non-dedicated AAC devices;
- Extension of Department of Developmental Services (DDS) eligibility to many persons with Autism, Prader Willi Syndrome and Smith-Magenis syndrome;
- The creation of an Autism Endorsement for special education teachers to enable them to voluntarily gain in-depth knowledge about the complexities of educating students with ASD;
- The creation of tax-free saving accounts (called “Achieving a Better Life Experience” or ABLE) to help families cover anticipated disability-related expenses for individuals with ASD and other physical and developmental disabilities;
- Requiring DMH and DDS to develop and implement a plan to provide services to individuals who have both a mental illness and a developmental disabilities; and
- Establishing the Autism Commission as a permanent entity.
Mass Advocates has also published:
- A fact sheet, which you can find here: Mass Advocates Fact Sheet; and
- The complete Bill, which you can find here: Autism Omnibus Bill.