COMMONWEALTH OF MASSACHUSETTS
DIVISION OF ADMINISTRATIVE LAW APPEALS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Student & Nashoba Regional School District
BSEA #25-04139
RULING ON PARENT’S REQUEST FOR ACCELERATED STATUS
This matter comes before the Hearing Officer on Parent’s[1] Request for an Accelerated Hearing (Hearing Request) filed with the BSEA on October 7, 2024, and Parent’s follow-up email to the assigned Hearing Officer requesting that the matter be granted accelerated status after it was assigned to the regular track.
RELEVANT PROCEDURAL HISTORY
On October 7, 2024, Parent, through her Attorney, filed the Hearing Request requesting that an individualized education program (IEP) be developed for a residential setting; the District timely identify an appropriate residential placement for Student that can meet all of his needs; the District fund certain requested interim services at home and in his current in-district program; Student be placed in an out-of-district day program on an interim basis; and she be awarded attorney’s fees.
On October 8, 2024, Nashoba Regional School District [District or Nashoba] filed a letter asking that the matter be placed on the regular track, rather than the accelerated track (Opposition Letter). Later that day, the BSEA Director reviewed both submissions and notified the Parties that it was “not wholly clear” that the Hearing Request met the standard for accelerated status[2] and a Notice of Hearing issued scheduling the initial Conference Call for October 28, 2024, and the Hearing for November 12, 2024.
On October 9, 2024, Parent’s Attorney emailed me, as the assigned Hearing Officer, requesting the matter be granted accelerated status. The Parties were advised they could request to advance the initial Conference Call and on October 10, 2024, Parent’s Attorney also requested by email that the advanced Conference Call be recorded.
Based upon these requests, on October 10, 2024, I issued an Order on Request to Advance Conference Call and to Record Conference Calls (Order), advancing the Conference Call to October 16, 2024, at 3:00 p.m. and denying the request to record the Conference Call. The Order also required that if the Parent,
“ … decline[d] to discuss her request for an accelerated hearing during the Conference Call, given that it will not be recorded, she may file any additional supplemental argument and information relating to her request for an accelerated hearing not already set forth in the Hearing Request in writing, by the close of the business day on October 11, 2024. The District will file any written responsive argument and information, not already contained in its October 8, 2024 reply letter, by the close of the business day on October 15, 2024 …”.
Parent did not file anything on October 11, 2024, as per the terms of the Order. The District filed its Response to the Hearing Request (Response) on October 15, 2024.
On October 16, 2024, approximately 15 minutes prior to the scheduled Conference Call, Parent’s Attorney filed Parent’s Response to BSEA October 10, 2024 Order (Response to Order) supplementing Parent’s request for an accelerated hearing, and seeking to have an evidentiary hearing on this request. No explanation was provided as to why the Response to Order was not filed by the deadline in the Order. During the subsequent Conference Call, the District’s Attorney advised that the District objected to the late filing of the Response to Order.
A Resolution Session was scheduled for October 21, 2024. The Parties have yet to advise as to the status of that event.
Based on the District’s objection and Parent’s failure to explain why her Response to Order was not filed by the Order’s deadline, the Response to Order will be included in the administrative file but will not be considered for purposes of this Ruling. Thus, this Ruling will be based on the information contained in the Hearing Request, the District’s Opposition Letter and the District’s Response. Further, I decline to grant Parent’s request for an evidentiary hearing on the instant dispute as neither testimony nor oral argument will advance my understanding of the issues involved[3], Parent already had an opportunity to supplement her request for an accelerated hearing in writing, which she did not timely do, and an evidentiary hearing on an issue that is solely a threshold question about the appropriate scheduling track, is neither necessary nor appropriate.
LEGAL STANDARDS
Although not part of IDEA, accelerated hearings are available at the BSEA , in accordance with Rule II(D) of the Hearing Rules. According to Rule II(D),
“[h]earings may be assigned accelerated status in the following situations:
- When the health or safety of the student or others would be endangered by the delay; or
- When the special education services the student is currently receiving are sufficiently inadequate such that harm to the student is likely; or
- When the student is currently without an available educational program or the student’s program will be terminated or interrupted immediately.”
Only those issues that meet the standard for accelerated status are placed on the accelerated track. All other issues should be bifurcated and proceed on the regular track[4]. Matters assigned accelerated status cannot be postponed, however, the parties can file written requests, or the Hearing Officer can determine, that accelerated status be removed, whereupon the matter will proceed “in accordance with the timelines set forth in federal and state law”[5].
APPLICATION OF LEGAL STANDARDS
Parent asserts that she has pled sufficient facts to meet the standard for an accelerated hearing for all her claims. According to the Hearing Request, accelerated status is warranted as,
“… Student’s health and safety, and the safety of others are at risk at (sic) the [S]tudent elopes from his current placement, is bashing his head at school and risking brain injury with each impact, the District has openly admitted that since the District unilaterally removed him beginning the 2023-2024 school year from the PACE program in the high school to the Transition program in the [e]lementary [s]chool the special education services the student is currently receiving are sufficiently inadequate such that harm to the [S]tudent (sic), and indeed [P]arents have been contacted multiple times this school year and last school year … to pick the [S]tudent up due to safety concerns and due to the District’s inability to keep the Student safe. Recently, in September 2024, the Student was so unsafe that a staff member at the [e]lementary [s]chool was physically harmed while (sic) severe scratch marks and open wounds up and down both of her arms, caused by the Student’s dysregulated state. The District openly admits that they (sic) cannot keep [Student] safe in the Transitions program …, and that [Student]’s significantly regressing in most of his previously learned skills because their (sic) sole focus for [Student] is safety, which they can’t even maintain. Meanwhile, psychologically harmful to the Student, the Student has been and remains isolated from peers nearly all day every day since …the 2023-2024 school year…”.
The District disagrees, contending in both its submissions that none of the allegations meets the criteria for accelerated status. The District submits that it has offered and identified day and residential placements for Student with at least two day placements as potentially viable at this time, and it has “gone above and beyond what is required. It is unclear to the District what the BSEA can order as Nashoba believes it has offered everything.” Although I disagree with the District’s contention that evaluation of accelerated status involves considering whether a District may be required to do more than it already is doing, I find that accelerated status is not warranted in this matter.
Student is 19 years old and has numerous disabilities[6]. His eligibility for special education is not in dispute. Parent contends that as a result of Student’s disabilities he “… experiences choking/vomiting and significant self-injurious behaviors (“SIB”) most especially high-impact head hitting risking brain injury with each impact”. The Hearing Request indicates that the concerns with choking/vomiting and the SIBs, including head-banging, have been shared and discussed by the Parties for several years, as far back as Parent’s December 8, 2022 partial rejection letter of an IEP. Additionally, the Hearing Request includes excerpts from the District’s spring 2023 Home Assessment Report that, of relevance, noted,
“Student is observed engaging in problematic behaviors such as aggression, environmental and self-flicking (sic) and vomiting or throwing up…. In the home, there were many holes at head height that were reportedly a result of SIB specifically towards the wall…. Additionally, in the time between the assessment period, there was a new hole in the stairway from a recent behavioral episode.”
Thus, based upon Parent’s own statements in the Hearing Request, it appears that the health and safety concerns that exist for Student and others have existed throughout the 2023-2024 school year, with many dating back to December 2022 or earlier. Despite Student’s dysregulation incident at school last month that resulted in “severe scratches and open wounds up and down both of [a staff member’s] arms”, and the fact that Student’s aggressive tendencies were noted in the spring 2023 Home Assessment, Parent waited until October 7, 2024, to file the Hearing Request instead of filing in the immediate days after this incident. Moreover, Student has continued to attend school after that incident with no other atypical dysregulation incidents alleged since then. Thus, it is not clear if this incident was a unique circumstance or indicative of more significant dysregulation that indicates greater safety concerns for Student or others than have existed over the past two years[7]. In any event, the concerns relating to Student’s behavior are not new.
Additionally, Parent does not allege any changes from the special education services Student received the entirety of last year and continuing into this school year. Although Parent challenges the appropriateness of these special education services, the Hearing Request indicates that the District offered a day program (accepted by Parents on January 23, 2023) and then a residential program (accepted by Parents in November 2023). While the Parties dispute the facts and circumstances related to these acceptances and their pursuit of referrals to these placements, it is clear from the written submissions that they have been proceeding to identify day and then residential programs since those acceptances. Further, the written submissions of both Parties indicate that, at least for interim purposes, there are one or two day programs that are currently considering accepting Student[8]. Interim services at an out-of-district day program are one proposed resolution in the Hearing Request and one that could also address any increased intensity of dysregulation that Student may be experiencing.
ORDER
Parent’s request to proceed on an accelerated track is DENIED. The Parties will participate in a further Conference Call on October 23, 2024, at 11:30 a.m. The Hearing on the merits remains scheduled for November 12, 2024. The Parties are reminded that any requests for postponement must be in writing and specify the reasons for and length of the postponement sought. Should the Parties resolve the matter prior to the Hearing, the moving Party shall submit a withdrawal of the Hearing Request.
By the Hearing Officer,
/s/ Marguerite M. Mitchell
Marguerite M. Mitchell
Date: October 22, 2024
[1] The Hearing Request was filed by Student’s Mother, who is his legal guardian. However, Student’s father also participated actively in Student’s education at all relevant times, and I use “Parent” and “Parents” interchangeably in this Ruling, both of which reflect the Party filing the Hearing Request.
[2] This notice advised Parent she could contact the assigned Hearing Officer in writing or by requesting a Conference Call regarding the dispute over accelerated status so the Hearing Officer can “consider the matter and elicit additional information, as necessary, in order to decide the status of the request.”
[3] See Rule VI(D) of the Hearing Rules for Special Education Appeals (Hearing Rules).
[4] Rule II(D)(3)(a), stating, in relevant part “when accelerated status is requested, a Hearing Officer will consider which issues, if any, meet the criteria above, and will schedule only those issue on an accelerated track. The remaining issues, if any, will proceed separately on a non-accelerated track…”; see In Re: Student v. Fitchburg Public Schools, BSEA # 24-09889, XX MSER XX (Reichbach, Ruling, 2024).
[5] Rule II(D)(4).
[6] According to the Hearing Request, Student’s disabling conditions include “severe cognitive deficits secondary to brain malformation (right temporo-occipital cortical malformation, mild hippocampal rotation, and overhanging of the medial temporal and occipital lobes along the tentorial leaflets bilaterally), severe autism, obsessive compulsive disorder (“OCD”) tendencies, gastroesophageal reflux disease (“GERD”), chronic abdominal pain, chronic constipation, and food allergies[. Student also has a] history of seizures”.
[7] Compare In Re: Fitchburg BSEA #24-09889 finding accelerated status warranted due to several recent examples of emerging new seizure behaviors in addition to allegations of misreporting a medical incident Student experienced shortly prior to filing the Hearing Request.
[8] According to the Response, Parent is even scheduled to tour one of these programs on November 12, 2024 (the current Hearing date). However, I encourage the Parties to work together to try to advance this tour date.