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In Re:  Pittsfield Public Schools – BSEA # 24-06614

COMMONWEALTH OF MASSACHUSETTS

DIVISION OF ADMINISTRATIVE LAW APPEALS

BUREAU OF SPECIAL EDUCATION APPEALS

In Re:  Pittsfield Public Schools
BSEA #  24-06614

DECISION

This decision is issued pursuant to the Individuals with Disabilities Education Act (20 USC 1400 et seq.), Section 504 of the Rehabilitation Act of 1973 (29 USC 794), the state special education law (MGL c. 71B), the state Administrative Procedure Act (MGL c. 30A), and the regulations promulgated under these statutes. 

A hearing in the above-noted matter was held via a virtual platform on April 11, 2024 before Hearing Officer Alina Kantor Nir.  Parents did not attend the Hearing. Pittsfield Public Schools was represented by counsel. Those present for all or part of the proceedings, all of whom agreed to participate virtually, were:

Alisia St. FlorianAttorney for the Pittsfield Public Schools (Pittsfield or the District)
Jenny StokesSpecial Education Director, Pittsfield
Morgan ScaceInstruction and Accountability Coordinator, Morningstar Community School (Morningstar)
Nicole ShepardsonPrincipal, Morningstar
Breanna SumyGeneral Education Teacher, Morningstar
Melissa LupoCourt Reporter

The official record of the hearing consists of documents submitted by Pittsfield and marked as Exhibits S-1 to S-22; documents submitted by Parents and marked as Exhibits P-1 to P-3; and a single volume transcript produced by a court reporter. Pittsfield’s Counsel made her closing argument orally, and the record closed on April 11, 2024.[1] 

ISSUE IN DISPUTE:

The issue to be decided is whether Parents’ refusal to consent to an extended evaluation at Crosby Academy, as proposed by the Pittsfield Public Schools, will result in the denial of a free appropriate public education (FAPE) to Student, and, thus, should substitute consent be awarded.

RELEVANT PROCEDURAL HISTORY:

On January 11, 2024, Pittsfield filed a Hearing Request with the Bureau of Special Education Appeals (BSEA) seeking substitute consent for an extended evaluation of Student at Crosby Academy, located at the Crosby Elementary School in Pittsfield, Massachusetts. The matter was postponed for good cause, and the parties participated in a Pre-Hearing Conference on February 14, 2024. Subsequently, the matter was postponed again for good cause, over the objection of Pittsfield, and the Hearing was scheduled to begin on April 4, 2024. Due to a “snow day” in Pittsfield on April 4, at Parents’ request, again, over the objection of the District, the matter was further postponed for good cause to April 11, 2024.

On April 4, 2024, the matter was reassigned for administrative reasons from the undersigned to Hearing Officer Reichbach. 

The Parties participated in two additional Pre-Hearing Conferences with Hearing Officer Reichbach, on April 5 and 9, 2024, respectively. On April 10, 2024, the matter was assigned back to the undersigned, for administrative reasons. [2]  Also on April 10, 2024, the parties were provided with a Zoom link for the April 11, 2024 Hearing.

When the Hearing began on April 11, 2024, Parents were not present. The Hearing Officer attempted to contact  Parents to remind them of the Hearing and allowed additional time for them to join the proceeding. Parents did not respond. They did not attend the Hearing, and the matter went forward in their absence.[3]

FACTUAL FINDINGS:

  1. Student is a fourth grade “academically capable and inquisitive” student, currently attending Morningside in Pittsfield, Massachusetts.  He is eligible for special education and related services pursuant to the Health Impairment disability category. (Stokes, Sumy, S-12)
  2. Academically, Student is “very intelligent” and is on grade level.  The results of Student’s psychological and educational testing completed as part of his three-year reevaluation in October 2022 demonstrated High Average cognitive abilities, as assessed by the Wechsler Intelligence Scale for Children-Fifth Edition (WISC-V). Student’s reading and math abilities were in the average range. [4] (Sumy, S-14)
  3. At school, Student’s behaviors interfere with his learning.  School staff consider these behaviors to be unsafe and disruptive.  Student often ignores directives from staff and has a difficult time managing his emotions. He elopes from the classroom daily, refuses to start or complete his work, and engages in peer conflict and physical aggression towards staff and peers. Student has a low frustration tolerance and requires support for transitions and changes, as well as for coping strategies. When Student becomes upset, he has difficulty expressing his feelings. He hides, stomps, paces, and tries to leave the premises. It can take a significant amount of time and several staff members to get him regulated.[5]  He requires frequent physical restraints and has often been evaluated by Mobile Crisis.  Socially, Student has few friends.  (Shepardson, Sumy, S-14, S-17, S-21) 
  4. At home, Student can become argumentative and throw “temper tantrums.” (S-14)
  5. Student’s current, accepted Individualized Education Program (IEP) (dated October 23, 2023 to October 22, 2024) calls for a full inclusion placement.  The only goal is a Social/Emotional Behavioral goal for which Student receives 30 minutes/ week  of services with a school adjustment counselor to work on social development, emotional resilience, and self-advocacy skills. (S-11, S-12, S-13)
  6. In January 2023, a Functional Behavior Assessment (FBA) was conducted.  This was revised in June 2023.  According to the FBA, from September of 2022 to January of 2023, Student had a total of 31 behavioral incidents involving Classroom and Public Space Misbehavior, Leaving Class, Physical Altercation Minor, Battery (Physical Attack), Nonsexual Harassment, Inciting or Participating in Disturbance, and Skipping Class. From February 2023 to May 2023, there were 71 behavioral incidents involving Classroom Misbehavior, Skipping/ Leaving Class, Physical Altercation Minor, Battery (Physical Attack), Inciting or Participating in Disturbance (3 logs), Violation of School Rules, Aggressive Non-Compliant Speech, Obscene Language, Obscene Gesture, Other Sharp Objects, Violation of Electronics, Attempted Suicide- Minor, Violation of School Rules, Sexual Harassment- Major. The FBA concluded that Student’s behavior appeared to be motivated by his desire to escape from structured activities. As a result of the FBA, a Behavior Intervention Plan (BIP) was developed for Student in the Spring of 2023 and updated in October 2023. (S-15, S-16)
  7. Breanna Sumy is Student’s fourth grade homeroom, science/social studies, and writing teacher. Ms. Sumy has an associate degree in early childhood education. She testified that she is “9 credits away” from completing her bachelor’s degree.  (Sumy) Ms. Sumy has been working as a long-term substitute at Morningstar Elementary School for two years. (Sumy)
  8. Ms. Sumy first became familiar with Student during the summer of 2023, when she taught his summer school class. At that time, she and Student formed a “bond”, and she believes that they still have a good relationship. According to Ms. Sumy, because the summer class was small in size, Student was successful. Shortly after  the school year started, around October, she noticed an increase in maladaptive behaviors which have continued to exacerbate. (Sumy, S-21)
  9. Nicole Shepardson is Morningstar’s principal.  Ms. Shepardson has a master’s degree in social work, and she is currently working on a doctorate in educational leadership. She holds multiple licenses with the Department of Elementary and Secondary Education (DESE), and has worked in multiple capacities in the District for 20 years.  (Shepardson) Ms. Shepardson testified that there are approximately 400 students attending Morningstar. There are three fourth grade classrooms, each with approximately 16-18 students. Each class is staffed by one general education teacher. Morningside is “departmentalized,” which means that different  teachers teach different subjects  (ELA, math, and social studies/science, respectively) and the students “move between teachers” within the grade level. (Shepardson)
  10. According to Ms. Shepardson, Student had a “great transition” into the 2023-2024 school year. He displayed minimal maladaptive behaviors in September and early October. However, in October, Student’s aggressive behaviors began to escalate necessitating frequent restraints. He was eloping from class, wandering the school, disrupting others, hiding, refusing to comply with directions, biting, and kicking. (Shepardson, S-17, S-21, P-1)
  11. On November 21, 2023, the Team convened to discuss Parents’ and school staff’s concerns. At that time, Parents suggested that recently implemented medication changes could be the root of Student’s escalating behaviors, and she indicated that she was working “with [a] doctor to figure out correct medication and diagnosis.” The school-based team expressed that it had “been implementing multiple interventions with no success”; Student had to be restrained  “sometimes multiple times a day,” and the Team had to “call crisis for additional support.” The Team agreed to “explore other least restrictive environments/ interventions within the gen ed setting,” to create a safety plan, and to “keep calling Crisis when determined it is appropriate.” (S-8, S-9, S-17)
  12. On November 28, 2023, the Team convened to discuss and develop a safety plan for Student. Parents noted that Student had started meeting with a therapist twice per week. They also indicated that they would “like [the] school to be more preventative/ proactive [and] less reactive.” The District presented the proposed safety plan to Parents and discussed the need to reengage Student in school. (S-6, S-10)
  13. According to Ms. Shepardson, by winter, Student was demonstrating “very high” levels of aggressive behavior, and he frequently needed additional staff support and had to be restrained. His aggressive behaviors also resulted in multiple injuries to staff. (Shepardson, S-17, S-21, P-1)
  14. The Team reconvened on December 8, 2023 and again on January 5, 2024 to discuss Student’s behaviors.  At the January 5th Team meeting, the District expressed concern that Student’s escalating aggression towards staff and peers had resulted in three staff hospitalizations.  As such, the Team proposed an extended evaluation to take place between 1/16/2024 and 03/26/2024 in order to conduct an “updated Functional Behavior Assessment” at “Crosby Academy (therapeutic setting)”. (S-1, S-2, S-3, S-4, S-5, S-7, S-8). 
  15. Jennifer Stokes is the Director of Special Education for the District. She has served in this role for 5 years. Ms. Stokes has worked in the District in multiple capacities for 20 years.  She has a bachelor’s degree in special education and a master’s degree in social work. She holds multiple licenses through the DESE.  Although Ms. Stokes has not worked directly with Student, she became familiar with him during the 2022-2023 school year as a result of increasing staff concerns regarding Student’s behaviors and his need for additional supports. (Stokes) Ms. Stokes was present at the January 2024 Team meeting. At Hearing, she testified that Crosby Academy is Pittsfield’s in-District public day program for students in grades K through 5 who exhibit social, emotional, and behavioral difficulties. It is housed at Crosby Elementary School, which allows inclusion opportunities in the general education setting as appropriate. The program offers students a therapeutic milieu; each class is staffed by one general education teacher, one special education teacher, and a paraprofessional. All staff at Crosby Academy are trained in providing therapeutic supports. The program is also staffed by a school adjustment counselor and a Dean of Students.  Although the capacity per class allows for 12 students, the current fourth grade class consists of only 5 students.  There were  only 35 total students at Crosby Academy as of the date of hearing. (Stokes)
  16.  Ms. Stokes testified that she is “highly concerned” about Student and that he requires additional testing. Although he is currently receiving services pursuant to a Health Impairment disability category, there may be additional diagnoses or disabilities the Team may be missing. Ms. Stokes testified that although the extended evaluation form seeks to conduct an FBA, she believes additional testing would be appropriate as well. (Stokes)
  17. Morgan Scace is the Instruction and Accountability Coordinator at Morningstar. Ms. Scace has been working in the District in multiple capacities for six years, including as a paraprofessional and a special education teacher. (Scace) She has chaired Student’s IEP Team meetings for more than two years and was present at the January 2024 meeting. She sees Student daily as she works in the building and is often called to provide him with additional support when he is escalated or “roaming” the school. Ms. Scace has observed Student eloping, pacing the hallways, stomping, and physically aggressing against peers and staff. According to Ms. Scace, Student is not accessing his education. He spends more time out of the classroom than in it. Even when in class, he is not doing any work, and demands have ben significantly lessened due to his dysregulation. Moreover, staff are repeatedly pulled out of classrooms to support him. Ms. Scace believes that Student requires the extended evaluation at Crosby Academy because it would offer him a small classroom size and highly trained staff to instruct him in the skills necessary to return to the general education setting. According to Ms. Scace, out of the 80 students on her caseload, she is most concerned about Student. (Scace)
  18. Ms. Shepardson is concerned that Student has developed a “negative attitude toward school” because he has been experiencing more frequent suspensions due to his maladaptive behaviors. He is often tardy  and “already frustrated” when he arrives at school. He refuses to enter the classroom or leaves shortly after  entering. Due to the “open concept floor model” at Morningstar, it is difficult to maintain Student in the classroom space. Because Student spends so much time out of the classroom, he has not developed close peer relationships, and his time on learning is significantly impacted. (Shepardson, S-17, S-21)
  19. Ms. Shepardson was also present at the January 5, 2024 Team meeting. She testified that she supported, and continues to support, the proposal for an extended evaluation for Student at Crosby Academy.  Ms. Shepardson is familiar with Crosby Academy as she  worked in the Crosby therapeutic classrooms before they “became the Academy.” She believes that Student requires a small setting with highly trained staff who can offer Student therapeutic supports. He requires a curriculum and a routine that embed social/emotional supports into the day in a way that the general education setting does not.  Ms. Shepardson noted that Student is unsuccessful in his current educational environment, and, “although he is bright”, he has missed a lot of instruction due to his emotional and behavioral challenges.   Student has many strengths, but he is unable to access them at this time at Morningstar. (Shepardson, S-21)
  20. Ms. Sumy testified that Student is “disruptive daily”, “pretty much … any time he is in class.” He often tries to distract other students by crawling on the floor and trying to bite their ankles during lessons; he is argumentative and has sent her rude emails during class; he has kicked her, resulting in an injury which kept her out of work for several days. Student often elopes from the classroom, and she has observed him spitting, throwing chairs, aggressing against others, and trying to jump out of a window.  She frequently has to “relocate” the class due to Student’s behaviors. Ms. Sumy has recently participated in a Crisis Prevention Institute (CPI) training in order to be better equipped at dealing with Student’s aggressive behaviors. (Sumy, S-17, S-21)
  21. According to Ms. Sumy, Student does not have many friends.  The other students are fearful of and nervous around him. In addition to verbally aggressing towards peers, he has also gotten into physical altercations with them.  They have also witnessed his physical aggression towards teachers and staff. Although Student has strong cognitive abilities, Student’s academic skills have suffered because he “spends so much time out of the classroom” due to elopement, aggressive behaviors, school suspensions, and, recently, a three-week period of absence from school “at Parents’ choice.”  Ms. Sumy testified that, even when in class, Student refuses to complete any work or assessments, making it difficult to assess his current skill levels. Student’s school record reflects his extremely poor work completion status;  he has completed zero assignments in most of his classes. (Sumy, S-21)
  22. Ms. Sumy was also present at the meeting on January 5, 2024. Ms. Sumy believes that Student would benefit from an extended evaluation at Crosby Academy. Although she has not observed Crosby, she has had students attend the Academy who have been successful there.  Ms. Sumy opined that Student would benefit from a small setting with fewer distractions. He needs to be able to voice his concerns and have them attended to in the moment by a trusted adult. In the large general education classroom, this is not always possible. According to Ms. Sumy, it is important that staff working with Student have the right skills to respond to his needs. (Sumy)
  23. Parents refused to consent to the extended evaluation, expressing that “there is more [the elementary school] can do to support [Student].” According to Ms. Scace, although Parents have agreed that Student is not accessing his education at Morningstar, Parents do not want Student at a therapeutic setting and “especially not at Crosby” as Parents “do[] not like the District as a whole.” At some point, Parents proposed that the District conduct the extended evaluation in a virtual setting, but they also indicated that childcare was a concern. (Scace, S-2)
  24. According to Ms. Stokes, in response to Parents’ refusal to consent to the extended evaluation at Crosby Academy, the District agreed to send four additional referrals to therapeutic out-of-district programs where the extended evaluation could be completed. Two of the programs declined to accept Student, and Parents rejected the other programs based on commuting distance and childcare issues. (Stokes, S-18, S-19, S-20, S-22, P-3)  
  25. As of February 2024, Student had 71 “major incidents” (the majority of which included “battery” or “Physical Aggression, Minor”) and 119 “minor incidents” at school since September 2023. Multiple staff members were involved in responding to Student’s incidents, which occurred daily, and, in most instances, several times per day. At least one incident resulted in police presence as Student climbed over a fence causing him to leave school premises. (S-21)
  26. Parents are frustrated with the “high turnover” of staff within those of Pittsfield’s schools with “the highest proportionality of [students of low social economic status] and students with disabilities.” (P-2)

LEGAL STANDARDS AND DISCUSSION:

  • Legal Standards
  1. Free Appropriate Public Education in the Least Restrictive Environment

The Individuals with Disabilities Education Act (IDEA) was enacted “to ensure that all children with disabilities have available to them a free appropriate public education” (FAPE).[6]  To provide a student with a FAPE, a school district must follow identification, evaluation, program design, and implementation practices that ensure that each student with a disability receives an IEP that is: custom tailored to the student’s unique learning needs; “reasonably calculated to confer a meaningful educational benefit”; and ensures access to and participation in the general education setting and curriculum as appropriate for that student so as “to enable the student to progress effectively in the content areas of the general curriculum.”[7]  Under state and federal special education law, a school district has an obligation to provide the services that comprise FAPE in the “least restrictive environment.”[8] This means that to the maximum extent appropriate, a student must be educated with other students who do not have disabilities, and that “removal . . . from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services, cannot be achieved satisfactorily.”[9]  “The goal, then, is to find the least restrictive educational environment that will accommodate the child’s legitimate needs.”[10] 

An IEP must be individually tailored for the student for whom it is created.[11]  When developing the IEP, the Team must consider parental concerns; the student’s strengths, disabilities, recent evaluations, and present level of achievement; the academic, developmental, and functional needs of the child; and the child’s potential for growth.[12]  Evaluating an IEP requires viewing it as a “a snapshot, not a retrospective. In striving for ‘appropriateness,’ an IEP must take into account what was . . . objectively reasonable . . . at the time the IEP was promulgated.”[13]

At the same time, a FAPE does not require a school district to provide special education and related services that will maximize a student’s educational potential.[14]  In Endrew F. v. Douglas County Regional School District, the SupremeCourt explained that appropriate progress will look different depending on the student.[15]  An individual analysis of a student’s progress in his areas of need is key.[16]

  1. Legal Standard for Substitute Consent

“School districts may not ignore disabled students’ needs, nor may they await parental demands before providing special education services; instead, they must proactively identify, locate, and evaluate children with disabilities who are in need of special education, and then develop an IEP for each such child.”16 Although parental consent is generally required for an evaluation to occur17, a school district may secure substitute consent through the hearing process in order to reevaluate a student without parental consent when the evaluation is “warranted.”18

Massachusetts law limits the availability of evaluations over parents’ objections to situations in which school district personnel believe an evaluation, other than an initial evaluation, is necessary for the district to provide a FAPE.19 In these circumstances, the district may proceed to the BSEA for a hearing.

“If, subsequent to initial evaluation and initial placement and after following the procedures required by 603 CMR 28.00, the school district is unable to obtain parental consent to a reevaluation or to placement in a special education program subsequent to the initial placement, or the parent revokes consent to such reevaluation or placement, the school district shall consider with the parent whether such action will result in the denial of a free appropriate public education to the student. If, after consideration, the school district determines that the parent’s failure or refusal to consent will result in a denial of a free appropriate public education to the student, it shall seek resolution of the dispute through the procedures provided in 603 CMR 28.08.”20

  1. Burden of Persuasion

In a due process proceeding, the burden of persuasion is on the moving party.21  Here, the District as the moving party must prove its case by a preponderance of the evidence.

  • Application of Legal Standards:

It is undisputed that Student is a student with a disability who is entitled to special education services under state and federal law. The issue in dispute is whether Parents’ refusal to consent to the extended evaluation proposed by Pittsfield will result in the denial of a FAPE to Student, and thus, should substitute consent be awarded. In accordance with the legal standard set forth above, to prevail, Pittsfield must prove by a preponderance of the evidence that: 1) the District provided Parents with prior written notice of its intent to conduct an extended evaluation; 2) Parents refused to provide consent for the extended evaluation; and 3) failure to conduct the extended evaluation at Crosby Academy would result in a denial of a FAPE to Student.22 Based upon approximately two hours of oral testimony, the exhibits introduced into evidence by both parties, and a review of the applicable law, I conclude thatPittsfield has satisfied its evidentiary burden of persuasion. As such, Pittsfield is entitled to substitute consent to proceed with its proposed extended evaluation of Student at Crosby Academy.

I note at the outset that Parents did not participate in the Hearing, this despite the matter having been postponed twice, over the District’s objections, to accommodate their schedules. Notwithstanding, Parents did submit documentary exhibits for the Hearing, which were admitted into the record and fully considered in rendering this Decision.  In addition, I note that I found the District’s witnesses to be credible, knowledgeable, and caring. I particularly place great weight on the testimony of both Ms. Shepardson and Ms. Sumy, whom I found to have significant personal knowledge of Student and his educational needs and to have a keen interest in his success.    

There is no dispute that Pittsfield provided Parents with prior written notice of the extended evaluation proposal and that Parents refused to grant their consent.  It is also undisputed that Pittsfield has an obligation to ensure that Student’s IEP is reasonably calculated to enable him to make progress that is appropriate in light of his circumstances.23 In Massachusetts, 603 CMR 28.05(2)(b) allows for extended evaluations under very specific circumstances, including when “the Team finds the evaluation information insufficient to develop an IEP.”  Moreover, courts have found that an evaluation is warranted where, in its absence, a school district would be unable to secure information that could reasonably lead to the development of an individually tailored IEP or where a student experiences significant changes in his circumstances or presentation.24

Here, the evidence is overwhelming that the Team requires additional information to develop an IEP that meets Student’s unique needs. The testimony and documentary evidence as to Student’s behaviors and the interventions utilized by the District credibly demonstrate that without additional information relative to Student’s needs there is a reasonable likelihood of educational harm to Student.25  All school-based witnesses testified that Student is (and has been for a significant period of time) unable to access his instruction and participate in his classroom due to interfering behaviors. Such behaviors are not properly addressed in Student’s current IEP, as evidenced by Student’s continued, persistent, and escalating struggles, despite multiple team meetings wherein various alternative strategies were developed and a safety plan was created.  Further, an FBA was completed in Student’s current placement and a BIP has been developed, implemented, and revised, but Student’s behaviors have not been ameliorated. While the results of Student’s 2022 three-year reevaluation indicate that Student possesses many cognitive and academic strengths, both Ms. Shepardson and Ms. Sumy testified that Student is unable to access these strengths in the current setting.  Specifically, they both advised that Student’s emotional and behavioral dysregulation keeps Student out of the classroom learning environment for the majority of the day, and during the rare times he is in the classroom, he engages in distracting and inappropriate behavior, interrupting the learning of others. Because of his time away from learning, Student has missed significant information and instructional concepts, and he has fallen far behind his peers.

Student’s current IEP and BIP are based on the information currently available to the District.  However, Student’s behavioral escalation suggests the need for additional information. Moreover, according to Ms. Stokes, at this time, not only is an FBA indicated but additional testing may be needed as well to assess Student’s functioning in other areas. Ms. Sumy’s testimony appears to support this opinion.  She indicated that Student’s academics have suffered due to his behavioral needs but that it is difficult to assess his skill level due to dysregulation and noncompliance.  In addition, despite her best efforts, it is unclear whether Ms. Sumy, who is still in the process of completing her education, is an appropriate teacher for Student in light of his disability related needs. I note however that  no evidence was presented to suggest that instruction even by a general education teacher with full licensure or more significant experience would have a different impact on Student’s behavioral difficulties. Instead, the overwhelming testimony suggested that expertise in therapeutic supports was necessary to engage and respond to Student’s behavioral challenges.  Moreover, socially, Student’s behavioral outbursts have alienated him from his peers. Thus, Student’s social skills have suffered, and he has no close relationships. He has also needed more frequent physical restraints during this school year, significantly impacting the quality of his educational experience. As Ms. Shepardson astutely opined, these have all contributed to his overall negative attitude toward school. 

I therefore find that an extended evaluation is warranted and necessary for Student’s Team to determine what services or placement will provide Student with a FAPE.26

The record  reflects that Crosby Academy is an appropriate location, and the least restrictive environment, for this extended evaluation.  Contrary to Parents’ suggestions, it would not be appropriate to conduct the extended evaluation in Student’s current setting or in a virtual setting.  School staff have been unable to engage Student in his current environment. Moreover, the deterioration of Student’s social skills this school year as attested to by Ms. Scace, makes any additional time outside a school setting contraindicated.  As Student’s cognitive abilities indicate that he should be able to access his education, it is especially important to assess Student’s behavior in a therapeutic school environment in order to identify his unique abilities, strengths, and needs, and to determine appropriate interventions that will enable him to access the educational curriculum. The testimony at Hearing was overwhelming that an effective evaluation should occur in a smaller setting with a high staff-to-student ratio where Student can be engaged, monitored, and assessed by highly trained staff.  Crosby Academy meets these requirements and is also located within a public elementary school within the District. It offers opportunities for inclusion, as appropriate. I therefore find Crosby Academy to be both the appropriate setting and the least restrictive environment in which to conduct the extended evaluation.  The District has met its evidentiary burden.

ORDER:

Pittsfield is granted substitute consent to conduct an extended evaluation of Student at Crosby Academy.

So Ordered,

By the Hearing Officer,

/s/ Alina Kantor Nir

Alina Kantor Nir

April 18, 2024

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

EFFECT OF FINAL BSEA ACTIONS AND RIGHTS OF APPEAL

Effect of BSEA Decision, Dismissal with Prejudice and Allowance of Motion for Summary Judgment

20 U.S.C. s. 1415(i)(1)(B) requires that a decision of the Bureau of Special Education Appeals be final and subject to no further agency review. Similarly, a Ruling Dismissing a Matter with Prejudice and a Ruling Allowing a Motion for Summary Judgment are final agency actions. If a ruling orders Dismissal with Prejudice of some, but not all claims in the hearing request, or if a ruling orders Summary Judgment with respect to some but not all claims, the ruling of Dismissal with Prejudice or Summary Judgment is final with respect to those claims only. 

Accordingly, the Bureau cannot permit motions to reconsider or to re-open either a Bureau decision or the Rulings set forth above once they have issued. They are final subject only to judicial (court) review.

Except as set forth below, the final decision of the Bureau must be implemented immediately. Pursuant to M.G.L. c. 30A, s. 14(3), appeal of the decision does not operate as a stay.  This means that the decision must be implemented immediately even if the other party files an appeal in court, and implementation cannot be delayed while the appeal is being decided.  Rather, a party seeking to stay—that is, delay implementation of– the decision of the Bureau must request and obtain such stay from the court having jurisdiction over the party’s appeal.

Under the provisions of 20 U.S.C. s. 1415(j), “unless the State or local education agency and the parents otherwise agree, the child shall remain in the then-current educational placement,” while a judicial appeal of the Bureau decision is pending, unless the child is seeking initial admission to a public school, in which case “with the consent of the parents, the child shall be placed in the public school program.” 

Therefore, where the Bureau has ordered the public school to place the child in a new placement, and the parents or guardian agree with that order, the public school shall immediately implement the placement ordered by the Bureau.  School Committee of Burlington v. Massachusetts Department of Education, 471 U.S. 359 (1985).  Otherwise, a party seeking to change the child’s placement while judicial proceedings are pending must ask the court having jurisdiction over the appeal to grant a preliminary injunction ordering such a change in placement. Honig v. Doe, 484 U.S. 305 (1988); Doe v. Brookline, 722 F.2d 910 (1st Cir. 1983).

Compliance

A party contending that a Bureau of Special Education Appeals decision is not being implemented may file a motion with the Bureau of Special Education Appeals contending that the decision is not being implemented and setting out the areas of non-compliance. The Hearing Officer may convene a hearing at which the scope of the inquiry shall be limited to the facts on the issue of compliance, facts of such a nature as to excuse performance, and facts bearing on a remedy. Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief, including referral of the matter to the Legal Office of the Department of Elementary and Secondary Education or other office for appropriate enforcement action. 603 CMR 28.08(6)(b).

Rights of Appeal

Any party aggrieved by a final agency action by the Bureau of Special Education Appeals may file a complaint for review in the state superior court of competent jurisdiction or in the District Court of the United States for Massachusetts. 20 U.S.C. s. 1415(i)(2).

An appeal of a Bureau decision to state superior court or to federal district court must be filed within ninety (90) days from the date of the decision. 20 U.S.C. s. 1415(i)(2)(B).

Confidentiality

In order to preserve the confidentiality of the student involved in these proceedings, when an appeal is taken to superior court or to federal district court, the parties are strongly urged to file the complaint without identifying the true name of the parents or the child, and to move that all exhibits, including the transcript of the hearing before the Bureau of Special Education Appeals, be impounded by the court. See Webster Grove School District v. Pulitzer Publishing Company, 898 F.2d 1371 (8th. Cir. 1990). If the appealing party does not seek to impound the documents, the Bureau of Special Education Appeals, through the Attorney General’s Office, may move to impound the documents.

Record of the Hearing

The Bureau of Special Education Appeals will provide an electronic verbatim record of the hearing to any party, free of charge, upon receipt of a written request. Pursuant to federal law, upon receipt of a written request from any party, the Bureau of Special Education Appeals will arrange for and provide a certified written transcription of the entire proceedings by a certified court reporter, free of charge.

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

EFFECT OF BUREAU DECISION AND RIGHTS OF APPEAL

Effect of the Decision

20 U.S.C. s. 1415(i)(1)(B) requires that a decision of the Bureau of Special Education Appeals be final and subject to no further agency review. Accordingly, the Bureau cannot permit motions to reconsider or to re-open a Bureau decision once it is issued. Bureau decisions are final decisions subject only to judicial review.

Except as set forth below, the final decision of the Bureau must be implemented immediately. Pursuant to M.G.L. c. 30A, s. 14(3), appeal of the decision does not operate as a stay. Rather, a party seeking to stay the decision of the Bureau must obtain such stay from the court having jurisdiction over the party’s appeal.

Under the provisions of 20 U.S.C. s. 1415(j), “unless the State or local education agency and the parents otherwise agree, the child shall remain in the then-current educational placement,” during the pendency of any judicial appeal of the Bureau decision, unless the child is seeking initial admission to a public school, in which case “with the consent of the parents, the child shall be placed in the public school program.”  Therefore, where the Bureau has ordered the public school to place the child in a new placement, and the parents or guardian agree with that order, the public school shall immediately implement the placement ordered by the Bureau.  School Committee of Burlington v. Massachusetts Department of Education, 471 U.S. 359 (1985).  Otherwise, a party seeking to change the child’s placement during the pendency of judicial proceedings must seek a preliminary injunction ordering such a change in placement from the court having jurisdiction over the appeal.  Honig v. Doe, 484 U.S. 305 (1988); Doe v. Brookline, 722 F.2d 910 (1st Cir. 1983).

Compliance

A party contending that a Bureau of Special Education Appeals decision is not being implemented may file a motion with the Bureau of Special Education Appeals contending that the decision is not being implemented and setting out the areas of non-compliance. The Hearing Officer may convene a hearing at which the scope of the inquiry shall be limited to the facts on the issue of compliance, facts of such a nature as to excuse performance, and facts bearing on a remedy. Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief, including referral of the matter to the Legal Office of the Department of Elementary and Secondary Education or other office for appropriate enforcement action. 603 CMR 28.08(6)(b).

Rights of Appeal

Any party aggrieved by a decision of the Bureau of Special Education Appeals may file a complaint in the state superior court of competent jurisdiction or in the District Court of the United States for Massachusetts, for review of the Bureau decision. 20 U.S.C. s. 1415(i)(2).

An appeal of a Bureau decision to state superior court or to federal district court must be filed within ninety (90) days from the date of the decision. 20 U.S.C. s. 1415(i)(2)(B).

Confidentiality

In order to preserve the confidentiality of the student involved in these proceedings, when an appeal is taken to superior court or to federal district court, the parties are strongly urged to file the complaint without identifying the true name of the parents or the child, and to move that all exhibits, including the transcript of the hearing before the Bureau of Special Education Appeals, be impounded by the court. See Webster Grove_School District v. Pulitzer Publishing

Company, 898 F.2d 1371 (8th. Cir. 1990). If the appealing party does not seek to impound the documents, the Bureau of Special Education Appeals, through the Attorney General’s Office, may move to impound the documents.

Record of the Hearing

The Bureau of Special Education Appeals will provide an electronic verbatim record of the hearing to any party, free of charge, upon receipt of a written request. Pursuant to federal law, upon receipt of a written request from any party, the Bureau of Special Education Appeals will arrange for and provide a certified written transcription of the entire proceedings by a certified court reporter, free of charge.

[1] Parents did not ask to file any closing arguments in writing or otherwise contact the Hearing Officer regarding their nonattendance at Hearing.

[2] The scheduling conflict necessitating the original reassignment had unexpectedly resolved as of April 10, 2024.

[3] Although no witnesses were presented to testify on Parents’ behalf, Parents’ Exhibits P-1, P-2 and P-3 were made part of the record, and I consider them in rendering my Decision in this matter.

[4] Although Student’s reading and math scores on the FASTBRIDGE CBM demonstrated average abilities, Student’s benchmark score in reading in October 2022 reflected a 22-point decrease from his previous benchmark score in June  2022. (S-14) 

[5] According to the results of the Vineland Adaptive Behavior Scales – Third Edition (Vineland-3) completed as part of Student’s three-year reevaluation in October 2022, Student exhibited weaknesses in the Socialization domain, and his score was clinically significant on the Externalizing Maladaptive Scale. In addition, based on teacher and parent ratings on the Behavior Assessment System for Children -Third Edition (BASC-3), Student had consistent elevated scores with regard to: Externalizing Problems Composite; Hyperactivity; Aggression; Conduct Problems; Anxiety; Depression; Behavioral Symptoms Index; and Adaptability.  

[6] Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1400 (d)(1)(A).

[7] See 20 USC §1401 (9), (26), (29); 603 CMR 28.05(4)(b); C.D. v. Natick Pub. Sch. Dist., 924 F.3d 621, 624 (1st Cir. 2019); Sebastian M. v. King Philip Reg’l Sch. Dist., 685 F.3d 84, 84 (1st Cir. 2012); C.G. v. Five Town Comty. Sch. Dist., 513 F. 3d 279, 285 (1st Cir. 2008); In Re: Chicopee Public Schools, BSEA # 1307346 (Byrne, 2013).

[8] 20 U.S.C § 1412(a)(5)(A); 34 CFR 300.114(a)(2)(i); M.G.L. c. 71 B, §§ 2, 3; 603 CMR 28.06(2)(c).

[9] 20 U.S.C. 1412(a)(5)(A); C.D., 924 F. 3d at 631 (internal citations omitted).

[10] C.G., 513 F.3d at 285.

[11] Endrew F. v. Douglas Cty. Reg’l Sch. Dist., 137 S. Ct. 988, 1001 (2017).

[12] 34 CFR §300.324(a)(i-v); Endrew F., 137 S. Ct. at 999; D.B. v. Esposito, 675 F.3d 26, 34 (1st Cir. 2012); N. Reading Sch. Comm. v. Bureau of Special Educ. Appeals, 480 F. Supp. 2d 479, 489 (D. Mass. 2007) (“The First Circuit has characterized the federal floor, which defines the minimum that must be offered to all handicapped children, as providing a meaningful, beneficial educational opportunity, and that court has stated that a handicapped child’s educational program must be reasonably calculated to provide effective results and demonstrable improvement in the various educational and personal skills identified as special needs”) (internal citations and quotations omitted).

[13] Roland M. v. Concord Sch. Comm., 910 F.2d 983, 992 (1st Cir. 1990).

[14] Bd. of Educ. v. Rowley, 458 U.S. 176, 197, n.21 (1982) (“Whatever Congress meant by an “appropriate” education, it is clear that it did not mean a potential-maximizing education”); see N. Reading Sch. Comm., 480 F. Supp. 2d at 488 (“The focus of inquiry under 20 U.S.C. § 1415(e)(i) must recognize the IDEA’s modest goal of an appropriate, rather than an ideal, education”).

[15] Endrew F., 137 S. Ct. at 992; see 603 CMR 28.02(17). 

[16] Endrew F. 137 S. Ct. at 1001 (“The nature of the IEP process, from the initial consultation through state administrative proceedings, ensures that parents and school representatives will fully air their respective opinions on the degree of progress a child’s IEP should pursue”); see K.E. v. Indep. Sch. Dist. No. 15, 647 F.3d 795, 809 (8th Cir. 2011) (explaining that the court would not compare the student to her nondisabled peers since the key question was whether the student made gains in her areas of need).

16 Reid v. District of Columbia, 401 F.3d 516, 518-9 (D.C.Cir.2005).

17 See 34 C.F.R. 300.300 (c)(1).

18 34 C.F.R. § 300.303 (a)(1); see West-Linn Wilsonville School District v. Student, 63 IDELR 251 (D. Ore. 2014) (reevaluation was warranted when Student’s behaviors escalated significantly and  the principal informed the director of student services that the special education teacher felt unsafe around the child).

19 See, e.g., Lowell Pub. Sch., BSEA #110039 (Crane, 2010) (granting the District substitute consent for an updated three-year evaluation, which parents refused, as this was necessary to determine what educational services and placement were appropriate for the student, and reasoning that “[w]ithout new evaluations, it simply is not possible to do what state and federal special education law require – that is, to determine whether special education or related services are needed, and to tailor any needed special education and related services to Student’s current strengths and weaknesses”); In Re: Maynard Pub. Sch., BSEA #106645 (Scannell, 2010) (finding that “many of the assessments requested by Maynard in the three year reevaluation proposal [were] necessary to determine [the student’s] current functioning so that the proper special education services [could] be provided to him”); In Re: Duxbury Pub. Sch. & Ishmael, BSEA #072419 (Byrne, 2007) (granting substitute consent for a comprehensive psychiatric evaluation based upon the District’s concern about conflicting and missing information regarding Student’s mental status and health as this was the primary disability affecting his education).

20 603 CMR 28.07(1)(b). As an extended evaluation is a method of evaluation, a hearing officer may order an extended evaluation.  See, e.g., In Re: Lowell Pub. Sch., BSEA #110039 (Crane, 2010).

21 See Schaffer v. Weast, 546 U.S. 49, 62 (2005).

22 See In Re: Lowell Pub. Sch., BSEA #110039 (Crane, 2010).

23 See Endrew F., 137 S. Ct. at 992.

24 See Johnson v. Duneland Sch. Corp., 92 F.3d 554, 557-8 (7th Cir. 1996) (affirming Hearing Officer’s order, under previous version of IDEA, that a three-year evaluation take place absent parental consent where a student’s “condition had changed since he last attended school”).

25 See In Re: Ipswich Pub. Sch. and Soleil, BSEA #1906526 (Byrne, 2019).

26 See, e.g., Shelby S v. Conroe Indep. Sch. Dist., 454 F.3d 450, 454 (5th Cir. 2006) (allowing reevaluation where without one the Team would not “know how to formulate an IEP consistent with Shelby’s extreme symptoms”); M.L. v. El Paso Indep. Sch. Dist., 610 F. Supp. 2d 582, 598–99 (W.D. Tex. 2009), aff’d sub nom. M.L. v. El Paso Indep. Sch. Dist., 369 F. App’x 573 (5th Cir. 2010) (Hearing Officer may override Parent’s lack of consent “particularly [] in a case such as this one, where failure to reevaluate A.L. for more than a year has resulted in A.L. continuing to receive services he does not need but potentially depriving him of services he may need”); Brock v. New York City Dep’t of Educ., No. 13 CIV. 8673 GBD DF, 2015 WL 1516602, at *7 (S.D.N.Y. Mar. 31, 2015) (upholding a hearing officer’s finding that without the requisite evaluations, there is no reliable way of analyzing the FAPE).

Updated on April 24, 2024

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