COMMONWEALTH OF MASSACHUSETTS
DIVISION OF ADMINISTRATIVE LAW APPEALS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Winchester Public Schools & Student
BSEA Nos. 24-11047 & 24-11708
Ruling on Motion to Amend Parents’ Response to Winchester Public Schools’ Request for Hearing and Counterclaims
and on
Parents’ Response to Winchester Public Schools’ Request for Hearing and Counterclaims
and on
Winchester Public Schools’ and Parents’ Cross-Motions for Summary Judgment
This matter comes before the Hearing Officer on the Cross-Motions for Summary Judgment of the Winchester Public Schools (Winchester or the District) and Parents in the above-referenced matter.
On April 9, 2024, Winchester filed a Hearing Request (BSEA # 24-11047) asserting that Student completed state and local graduation requirements, that Glenhaven has provided meaningful educational benefit to the Student, that the Student has been appropriately graduated, and that the District’s obligation to provide FAPE to Student had ended.
On April 24, 2024, Parents filed Parents’ Response To Winchester Public Schools’ Request For Hearing & Counterclaims (Response and Counterclaims) (BSEA # 2411708). In it, Parents “concede[d]” that Student passed MCAS, but they “contested” that he met local graduation requirements. Moreover, they asserted that Student’s Individualized Education Program (IEP) was not reasonably calculated to provide him educational benefit, particularly with emotional, behavioral, social, and independent living skills related to his disabilities, and the goals were not appropriate. They further asserted that Student did not receive appropriate transitional services nor did he make progress on many of his goals or generalize skills to environments outside of school. Parents requested, in part, that the Hearing Officer conclude that Student continues to be a student with disabilities who requires special education under federal and state laws; determine that Student requires an IEP and placement at an appropriate residential school to receive a FAPE; order Winchester to develop an IEP and place Student at a residential school consistent with his disability-related needs; issue any equitable orders justified by the evidence, including for compensatory services; and, make findings with respect to all violations of law by Winchester within the jurisdiction of the BSEA.
Parents moved for consolidation, which was originally denied on April 25, 2024. They requested reconsideration after Winchester withdrew its objection, and the Hearing
Officer revised her ruling later in the day on April 25, 2024, thereby allowing the matters to be consolidated.
On June 18, 2024, the District filed Winchester Public Schools’ Motion for Summary Judgment and Memorandum of Law in support thereof[1] with the Bureau of Special Education Appeals (BSEA) (Winchester’s Motion for Summary Judgment) asserting that “there is no genuine issue of material fact as to the facts that the Student has graduated after meeting all local and state graduation requirements, including the competency determination based on the Massachusetts Comprehensive Assessment System (MCAS), and the District has offered FAPE for the 2021-2022, 2022-2023, and 2023-2024 school years,” and Student is no longer eligible for special education and not owed any compensatory education.
On June 28, 2024, Parents filed Motion to Amend Response To Winchester Public Schools’ Request For Hearing & Counterclaims (Motion to Amend) in which they assert that they “erroneously” stated that they had “agreed” that Student had passed the Massachusetts Comprehensive Assessment System (MCAS) in English Language Arts (ELA) and Math; in fact, Student has not passed MCAS because he had failed to complete an Educational Proficiency Plan for ELA and Math. Therefore, Student has not met the competency determination required for graduation in Massachusetts.[2]
On the same date, Parents filed Parent-Guardians’ Opposition To Winchester Public Schools’ Motion For Summary Judgment & Counter-Motion For Summary Judgment
With Incorporated Memorandum Of Law (Parents’ Cross-Motion)[3] opposing Winchester’s Motion for Summary Judgment and moving for summary judgment on their Counterclaims.
On July 9, 2024, Winchester filed Winchester Public Schools’ Reply To The Parents’ Opposition To Winchester Public Schools’ Motion For Summary Judgment And Opposition To The Parents’ Motion For Summary Judgment And Memorandum Of Law In Support Thereof (Winchester’s Opposition),[4] and, on July 10, 2024, Winchester filed Supplement To The Winchester Public Schools’ Reply To The Parents’ Opposition To Winchester Public Schools’ Motion For Summary Judgment And Opposition To The Parents’ Motion For Summary Judgment And Memorandum Of Law In Support Thereof (Supplement).[5] Parents filed their Reply To The Winchester Public Schools’ Opposition To The Parents’ Motion For Summary Judgment on July 18, 2024 (Reply).
Neither party has requested a hearing on the Motions. Because neither testimony nor oral argument would advance the Hearing Officer’s understanding of the issues involved, this Ruling is issued without a hearing, pursuant to Bureau of Special Education Appeals Hearing Rule VII(D).
For the reasons set forth below, Parents’ Motion to Amend is ALLOWED. Winchester’s Motion for Summary Judgment is ALLOWED, IN PART, and DENIED, IN PART. Parents’ Cross-Motion for Summary Judgment is DENIED.
I. ISSUES:
The issues here presented are:
- Whether Parents should be allowed to amend their Response to Winchester Public Schools’ Request For Hearing and Parents’ Counterclaims; and
- Whether the District is entitled to summary judgment as a matter of law, such that Student is no longer eligible for special education and related services and thereby is not entitled to continued residential placement at JRI Meadowridge Glenhaven School (Glenhaven); or
- Whether Parents are entitled to summary judgment as a matter of law, such that Student continues to be eligible for special education and related services and is entitled to continued residential placement and compensatory services.
II. FACTUAL BACKGROUND:
The following facts are not in dispute and are derived from the Hearing Request, the Parents’ response thereto, the District’s Motion, Parents’ Opposition, Parents’ Cross-Motion, the District’s Opposition and Supplement, and Parents’ Reply, and all exhibits attached to said pleadings.
- Student is a 19 year-old resident of Winchester, Massachusetts. He was found eligible for special education services under the primary disability category of Emotional Disability, and secondary disability categories of Neurological and Health. (S-Appendix 8, S-Appendix 20, S-Appendix 24) Student is diagnosed with Attention-Deficit Hyperactivity Disorder (ADHD), Post-Traumatic Stress Disorder (PTSD), Language Disorder, Neurodevelopmental Disorder associated with his biological parents’ substance exposure, as well as encopresis and enuresis. (S-Appendix 2, S-Appendix 4, S-Appendix 5, S-Appendix 20, S-Appendix 24, P-Appendix 1) Due to Student’s early experiences in foster care, Student experiences severe anxiety which presents as behavioral dysregulation including, but not limited to, a tendency to engage in property destruction, elopement, and verbal and physical aggression. (P-Appendix 1)
- Since May 2018, Student has attended Glenhaven Academy in Marlborough, Massachusetts. (S-Appendix 3, S-Appendix 8, P-Appendix 2 to P-Appendix 15). Glenhaven Academy is “a trauma-informed residential/educational treatment program that emphasizes routine and structure.” (P-Appendix 1)
- During the 2019-2020 school year, Student’s freshman year at Glenhaven. Student earned As and Bs in his classes which included Health, Physical Education, Biology, Algebra I, World History II, American Literature, Art and Learning Center. (S-Appendix 15, P-Appendix 28)
- At the conclusion of Student’s sophomore year, on June 16, 2021, the Team convened for an annual Team meeting to develop an IEP for Student for the period from 06/16/2021 to 06/15/2022 (June 2021 IEP). At that time, with supports, Student was able to access the curriculum “close to his grade level.” Parents’ concerns centered on his aggression and his graduation prospects. (S-Appendix 2, P-Appendix 8, P-Appendix 23)
- The June 2021 IEP called for residential placement at Glenhaven and included goals and services in the areas of Social Emotional, Participation, Written Expression, Reading, Mathematics, and Activities of Daily Living (ADLs). The District proposed A-grid staff consultation (1x30min/month) and case management consultation (1x30min/month) and C-grid individual therapy (1x60min/week), group therapy (2x60min/week), academic instruction and social emotional/behavioral support (1×29.5hr weekly/216 days per year), and literacy instruction (1×30/week). A Transition Planning Form was completed. June 2, 2023 was identified as Student’s anticipated graduation date. (S-Appendix 2, P-Appendix 8)
- Parents accepted the June 2021 IEP in full on July 8, 2021 and accepted the placement on September 3, 2021. (S-Appendix 2, P-Appendix 8)
- Student participated in the Massachusetts Comprehensive Assessment System (MCAS) exams in English Language Arts (ELA) and Mathematics (Math) in spring 2021 and “passed” both. [6] (P-Appendix 23). For the ELA MCAS exam, he received a score of 468. (P-Appendix 23 to P-Appendix 28). For the Math MCAS exam, Student received a score of 474, demonstrating a 63% Growth Percentile. (S-Appendix 1, P-Appendix 19, P-Appendix 23)
- No Educational Proficiency Plan (EPP) “documents” were “created” by Glenhaven for Student. (Opposition)
- On June 13, 2022, the Team convened to review Student’s IEP. Parents expressed concern with Student’s lack of personal accountability, remorse, and social connections, and his “magical/unrealistic expectations.” The Team noted that Student had made “insufficient progress” on his ADL Goal during the prior IEP period, but he was able to complete laundry and hygiene routines, self-advocate, and utilize coping strategies. (S-Appendix 3, P-Appendix 9)
- The IEP proposed for the period from 6/13/2022 to 6/12/2023 (June 2022 IEP) included goals in the areas of Social/Emotional, Participation, Written Expression, Reading, Mathematics, ADLs, and Executive Function. The District proposed A-grid Clinical Consult (1x30min/month) and Consult with mental health provider, school nurse, and special education teacher (1x30min/monthly); and, C-grid Counseling (2x60min/week), Academic (1x60min/5days), Behavior (1x1770min/week), ELA Reading (1x30min/week), and Transition Skills (2x45min/5days). Student’s anticipated date of graduation was June 2, 2023. A Transition Planning Form was completed, and the District proposed residential placement at Glenhaven. (S-Appendix 3, P-Appendix 9)
- On September 14, 2022, Parents accepted the June 2022 IEP and placement in full. (S-Appendix 3, P-Appendix 9)
- During the 2021-2022 school year, Student earned an A- in Health and Bs in Physical Education, Classical Literature, Social Studies, Algebra 2, Science Technology, Art, and Learning Center. (S-Appendix 15, P-Appendix 28)
- Student’s August 2022 Progress Report noted continued improvement in some areas and continued struggles in others. Specifically, Student’s hypervigilance had decreased; he had limited aggressive episodes; and, he completed his work and was motivated to achieve good grades, demonstrating “a higher frustration tolerance, overall.” However, he struggled with integrating with his peer group and with limit setting at home. He had difficulty accepting staff support, was “inconsistent in utilizing supports/coping skills independently,” and was resistant to completing chores.. (S-Appendix 4, P-Appendix 33)
- On August 10, 2022, the District made a 688 Referral for Student to the Department of Mental Health (DMH). (P-Appendix 9)
- In October 2022, Winchester completed a Psychoeducational Evaluation of Student. Results demonstrated mostly average academic skills but significant emotional and behavioral vulnerabilities across a variety of domains, poor social and adaptive skills, and dysregulation. (P-Appendix 5, S-R12)
- Student’s November 11, 2022 Progress Report reflected progress in the following goal areas: Participation, Written Expression, and Math. Student made minimal progress toward his Reading Goal and insufficient progress on his Social/Emotional and ADLs Goals. Although he continued to struggle with peers, Student successfully completed his routines. (S-Appendix 5, S-Appendix 6, P-Appendix 16)
- The Team convened in November and December 2022 to review eligibility and to develop an IEP. The Team determined that Student continued to qualify for special education services until his “graduation date of June 23, 2023.” Parents expressed “fear” that Student would be unable to live safely at home after graduation. (S-Appendix 7, S-Appendix 8, P-Appendix 7, P-Appendix 10, P-Appendix 34)
- The District proposed an IEP for the period from 11/28/2022 until 06/23/2023 (November 2022 IEP) with residential placement at Glenhaven. Winchester, and goals in the areas of Social/Emotional, Regulation, Written Expression, Reading, Mathematics, Transition, and Study Skills. The IEP included A-grid staff consultation (1×30 per month) and case management (1×30 per month) and C-grid services for group therapy (2×60 per week), individual (1×29.5 hrs. weekly/ 216 days per year), and transition (2×45 per week). Student’s anticipated graduation date was June 23, 2023. (S-Appendix 7, S-Appendix 8, P-Appendix 10)
- Student’s Transition Action Plan stated, in part, that he would participate in educational class to meet graduation requirements, utilize coping strategies, work on social skills, work with a transitional counselor, complete Interest and Career Inventories, develop vocational skills in on-campus positions, complete dally chores, access the community and attend trips, participate in travel training and learn to use the MBTA. (S-Appendix 8, P-Appendix 10)
- On January 23, 2023, Parents partially rejected the IEP but accepted the placement at Glenhaven. (S-Appendix 8, P-Appendix 10) Although “grateful” for Glenhaven, they rejected the anticipated graduation date of June 23, 2023, and inquired whether they “need[ed] to start looking at other schools.” Parents stressed that Student needed “a greater focus on vocational and independent living skills.” (S-Appendix 9, P-Appendix 10) Parents also rejected the omission of extended school year services[7] and requested that Health be added as a disability category in the IEP. They accepted all “new” benchmarks but rejected “the removal of benchmark/objectives from the goals in the last IEP.” (S-Appendix 9, P-Appendix 10)
- In January 2023, Student delegated decision-making authority to his mother. (S-Appendix 9, P-Appendix 41)
- On March 13, 2023, the Team met to discuss the rejected portions of the IEP. At the meeting, the District proposed a Transition Assessment. The N1 issued from this meeting states that “parents and Glenhaven noted that … [Student] ha[d] not met his IEP goals and will require additional support vocationally and residentially after June of 2023, the current graduation date.” The N1 further notes that by June 2023, Student “would have obtained graduation credits and MCAS requirements.” (P-Appendix 11)
- In March 2023, Student participated in a Transition Assessment with Christina Benoit. The assessment identified several areas of concern including financial, educational planning, and beliefs and expectations barriers. Ms. Benoit concluded that Student was not fully aware of his abilities, and his actions did not show a high level of independence. She recommended, in part, that Student explore opportunities for Pre-Employment Transition Services (Pre-ETS), a referral to the Massachusetts Rehabilitation Commission (MRC); a 688 referral to DMH; and, a referral to Boston Independent Living Center (BCIL) to assist with independent living skills training, information/referral, travel training, employment skills and education on benefits. (S-Appendix 10, P-Appendix 6)
- Student’s spring 2023 Progress Report reflected progress in self-advocacy, frustration tolerance, and availability for feedback. Student had “few behavioral interruptions” but continued to struggle with taking responsibility for poor decisions and was inconsistent in completing non-preferred expectations. Due to problems with contraband, Student’s passes home were limited. (S-Appendix 12, S-Appendix 13, S-Appendix 14, P-Appendix 17, P-Appendix 35, P-Appendix 36, P-Appendix 37).
- On March 8, 2023, Parents were appointed legal guardians of Student. (P- Appendix 11, P-Appendix 42)
- On May 3, 2023, the parties in this matter executed a Mediation Agreement pursuant to which Student remained at Glenhaven, while awaiting information from DMH regarding an opening in its residential adult services program. The parties anticipated that a DMH placement for the Student would become available within 3 to 5 months. (S-Appendix 11, P-Appendix 12)
- During the 2022-2023 school year, Student’s grades included a C in Global Literature and As and Bs in Precalculus, Health and Wellness, History of Horror, World History II, Art and Sports. (S-Appendix 14, S-Appendix 15, S-Appendix 16, P-Appendix 28)
- During this time, Parents expressed concern about the “adequacy” and challenge of Student’s coursework. (P-Appendix-29, P-Appendix 31, P-Appendix 32, P-Appendix 44)
- Student earned a total of 150 credits during his 4 high school years. (S-Appendix 15, P-Appendix 28)
- According to Glenhaven’s June 13, 2023 Transition and Discharge Plan, Student was “able to meet graduation requirements for his high school degree.” (S-Appendix 13)
- Cori Slater noted in her July 2024 Affidavit, submitted for purposes of the instant Ruling, that as the Director of Education during the 2022-2023 school year, she was knowledgeable about the requirements for graduation for students. She was also aware in the Spring of 2021 that Student received scores on the MCAS of 468 in English Language Arts and 474 in Mathematics, respectively. She certified that during the 2021-2022 and 2022-2023 school years, Student successfully completed relevant course work to continue to make progress towards his proficiency in Mathematics, namely Algebra I, Algebra 2, and Geometry. He also completed relevant course work to continue to make progress towards proficiency in English Language Arts, namely Classical Literature and Global Literature. In addition, Student successfully participated in locally developed assessments in English Language Arts and Mathematics based on the Massachusetts Curriculum Frameworks. (S-S1)
- Dennis Mahoney is the current principal of Winchester High School and has served in that role during that 2021-2022 and 2022-2023 school years. He certifies whether students meet graduation requirements. According to Mr. Mahoney, as of June 2023, Student had done so. (S-Appendix 25)
- According to Parents, a diploma from Winchester requires two years of World Language. (P-Appendix 29, P-Appendix 30) Student never took a World Language course. (S-Appendix 15, P-Appendix 28, P-Appendix 29).
- On June 16, 2023, Parents met with Student’s DMH worker to discuss Student’s “needs/supports moving forward”, including the need for a group living environment placement upon discharge from Glenhaven Academy. (P-Appendix 44, S-R2).
- Student’s June 2023 Progress Report indicated “minimal” to “insufficient” progress on his Social/Emotional, Regulation and Transition Goals. (P-Appendix 18, P-Appendix 28)
- On June 23, 2023, Student graduated from high school. (S-R1, S-SS1)
- In June and July 2023, Student successfully engaged with his family off campus. (S-R2)
- Student’s August 2023 Progress Report reflected positive familial interactions, and Student was approved for an extended pass with his family during which Student “behaved appropriately within the community.” He engaged in routines on a “mostly consistent basis” and improved his attendance, participation, independent work completion, and self-advocacy. Although he “engag[ed] more in activities related to building life and work skills and researching interests,” Student did not “make much notable progress on his goals.” (S-Appendix 16, P-Appendix 19)
- On September 11, 2023, Parents met with DMH, but there was no update regarding services or housing. (P-Appendix 44)
- Student’s November 2023 Progress Report demonstrated mastery of his Written Expression and Reading goals. He made progress on his Study Skills and Transition goals and met two benchmarks on his Mathematics goal. On the Transition goal, progress was “sufficient”, and he demonstrated “growth in his capacity for maintaining home-based living skills” and his “overall engagement.” However, Student’s progress on the Social/Emotional and Regulation goals was insufficient. (S-Appendix 17, P-Appendix 20)
- In January 2024, Student’s Progress Report reflected “significant gains” on academic goals, “moderate” progress on the Transition goal, and “limited” progress on the Social/Emotional and Regulation goals. (P-Appendix 21)
- The parties returned to mediation on January 4, 2024 as DMH did not have an appropriate placement for Student. Parents requested that a Team meeting be scheduled, because no annual review had been conducted for the November 2022 IEP. (P-Appendix 13, P-Appendix 44)
- As part of its out-of-district monitoring, the District observed Student at Glenhaven in January 2024. Student was friendly and engaged, working on a state curriculum for developing personal care, health, social skills and safety. He did not exhibit any concerning behaviors during the visit, but Glenhaven staff noted that Student had “yet to demonstrate skills” necessary to transition to a residence for students with “more independent with living skills,” and he had “barely participate[d] in on campus vocational sites.” (S-Appendix 18)
- On January 19, 2024, Student was found eligible by the Massachusetts Department of Developmental Services (DDS). (P-Appendix 43)
- The Team convened on January 23, 2024 “to discuss progress” and Student’s “transition to post-secondary life.” (S-Appendix 19) DMH was not present. (S-Appendix 20) Glenhaven staff shared that Student had made progress at Glenhaven but “continue[d] to need to work” on many of his skills. Parents observed that while Student “continue[d] to make progress,” he was aggressive when angry. In addition, he had “magical thinking/unrealistic expectations” and was unable “to follow through on anything or take on responsibility.” Without proper supports, they feared for his future. (S-Appendix 19, S-Appendix 20, P-Appendix 13, P-Appendix 14)
- Following the meeting, the District proposed an IEP for the period from 1/23/24 to 3/31/24 (January 2024 IEP) including placement at Glenhaven and goals and services in the areas of Social/Emotional, Behavioral Regulation, Functional Academics, and Transition. (S-Appendix 19, S-Appendix 20, P-Appendix 14) The District proposed discharge from Glenhaven on 3/31/24 as Student “had passed the MCAS, met the district requirements, and earned his high school diploma in June 2023….The IEP Team, including the Parents, agreed that Glenhaven has provided FAPE.” (S-Appendix 19, P-Appendix 13)
- On February 14, 2024, Parents met with DMH. According to Parents, DMH stated that Student “was too complex”, and there were no programs for him. (P-Appendix 44)
- On March 1, 2024, Parents accepted placement at Glenhaven but only partially accepted the January 2024 IEP. Parents expressed that they were “grateful to Glenhaven for the years that [Student] ha[d] been stable and made good progress there.” They rejected “discharge” on March 31, 2024 as well as the “adequacy” of the Functional Academics benchmark/objectives and the lack of a Vocational Skills goal. Noting that the IEP was moving in the right direction, they stated that it “could go further” and asked Winchester to consider “young adult programs at other residential schools to determine whether there [was] a program for [Student] better tailored to his current and future needs, or whether Glenhaven [was] the best available for him.” (S-Appendix 21)
- Cara Falconi is a Special Education and Therapeutic Consultant. She has been consulting with the family since January 2024 regarding appropriate placement and next steps for Student. (P-Appendix 46) On March 23, 2024, Ms. Falconi completed a private Placement Consultation Report, noting, in part,
“that [Student] continue[d] to require ongoing special education to work on the transition-focused adulting skills he has not yet been able to work on due to his mental health needs. He also need[ed] a residential setting because [Student] [was] emotionally volatile and a risk to the community without the right structure and support in place…. Currently he [was] not able to access the majority of components of his life including meaningful social events, authentic relationships, success with day to day living, and vocational opportunities.”( S-Appendix 23, P-Appendix 4)
- Although Ms. Falconi acknowledged that Student had “made wonderful gains at Glenhaven over the years,” she concluded that he continued to have many goal areas to work on and “still require[ed] around-the-clock consistency, a strong clinical milieu, constant and consistent skill building and scaffolding, engagement, ongoing reinforcement and feedback, and an appropriate balance between structure and supervised independence, all of which need[ed] to be delivered by an expert residential team.” According to Ms. Falconi, Student had “become too comfortable [at Glenhaven]…[and] require[ed] something more and different to make progress across all areas of his life.” (S-Appendix 23, P-Appendix 4)
- In her June 2024 Affidavit, submitted for purposes of the instant Ruling, Ms. Falconi noted that “no transition or vocational specialists” were included as service providers in Student’s IEPs. In addition, although Student’s vision in the 2022-2023 IEP was “to get an off grounds job,” this “never happened.” Ms. Falconi conceded that Student had made “small gains towards academic goals,” but opined that “greater focus should have been on [his] social emotional and transition goals.” She concluded that “for his profile,” Student had not made “effective progress in many other areas of disability-related need, including transition-related, social pragmatics, and social emotional and behavior skills, as evidenced by his continued struggles, the results of his recent neuropsychological report, and the ongoing feedback and data from Glenhaven.” (P-Appendix 46)
- During February, March, and April 2024, Elizabeth Bernstein, Ph.D. completed a private Neuropsychological Evaluation of Student. Dr. Bernstein observed that on the 2024
“standardized measure of intellectual functioning, [Student] performed better than in previous assessments. In fact he performed better than previously on most cognitive measures…. At present his overall performance on the WAIS IV fell in the low average range (Full Scale IQ= 84), while in the past his overall performance fell in the borderline deficient range (2018 & 2022 Full Scale IQ=75).” (S-Appendix 24, P-Appendix 2, P-Appendix 3)
- Although Student was “chronically prone to severe emotional dysregulation” and had “shown a longstanding cluster of antisocial behaviors,” Glenhaven staff and Parents noted an improvement “in the last six months.” While “still pronounced,” Student’s emotional and behavioral problems were “less acute than in 2022.” Whereas Student’s “projective test responses indicated that since 2022 he has become less consumed by aggression,” he had also become “more depressed.” Moreover, on a measure of social reasoning, he performed worse than in 2022. According to Dr. Bernstein, Student’s “social reasoning difficulties appeared to be shaped by his intellectual weaknesses, unfamiliarity with conventional family scenarios, and limited emotional development.” His adaptive living skills in all major areas were weaker than in 2022, a decline which “contrasted sharply with his improvement in cognitive functioning. It highlighted the dramatic discrepancy between his intellectual strengths and mental health disabilities.” (S-Appendix 24, P-Appendix 2, P-Appendix 3)
- Dr. Bernstein found it “notable” that Student’s “antisocial acts [had] mostly been committed at home and in his community,” and she concluded that the residential program had “helped [Student] decrease certain problem behaviors and deterred others. Most likely [Student’s] unconscious fear of life outside residential school [] contributed to his slow progress.” She opined that Student “[could] not safely live in the community.” His
“needs [were] life-long, with deficits impairing his ability to live and work independently. Without continuing in a strong special education residential program through age 22 he will be at very high-risk in unsupported environments. The more support he [could] get now, the more options will be available to him over time through DMH/DDS adult services.” (S-Appendix 24, P-Appendix 2, P-Appendix 3)
- According to Glenhaven, between February and May 2024, Student “continued to display intermittent irritability and verbal reactivity towards staff, typically in response to limits or expectations.” He “made some positive improvements in his consistency with engaging in non-preferred expectations and “readily advocate[d] for his needs”. In addition, he “maintained connections with preferred peers,” and “his engagement with peers [was] typically positive and appropriate.” (S-Appendix 22, P-Appendix 40, S-R2)
- Student’s April 2024 Progress Report reflected “limited” progress on the Social/Emotional goal, “minimal” progress on the Regulation goal, “limited” progress on the Transition goal, and “progress” on the academic goals. (P-Appendix 22)
- On April 26, 2024, Parents met with DMH staff who indicated that Student was not ready to be in their service system as he was yet unable to manage and monitor himself throughout the day. Glenhaven staff noted that “in the community, [Student] put[] himself and others at risk, [and] he had not made progress on his transition goals” due to unsafe behaviors. Student needed “constant oversight and monitoring moving forward including in the bathroom, and [Student’s] access to community varied from week to week depending on how [he was] presenting.” (P-Appendix 44, P-Appendix 46)
- The Team convened on May 30, 2024 to review Dr. Bernstein’s and Ms. Falconi’s reports. Parents informed the Team that DMH had approved Student for adult services but were not able to meet his needs at the moment. Dr. Bernstein indicated that Student had “not made significant improvement overall regarding transitioning to adulthood….There [were] some vocational and IEP living skills that [Student] ha[d] not yet met.” Moreover, he was “really at risk of aggressions and need[ed] a high need for containment” as well as “continued vocational and life skills training” and “around the clock skill building, support and intervention coupled with staffing support.” Glenhaven staff commented that Student had been “roughly at his baseline” but struggled with “limits setting.” Student had “good weeks and then slid[] back.” He had “more control in his academic setting since the peers [were] supported and there could be less control in public.” (P-Appendix 15)
- Liz Fahey, a Transition Services Consultant from the Integrated Center for Child Development, has worked with the family since January 2024. According to Ms. Fahey, “[i]n [her] years as a transition consultant since 2018, [she had] never seen a student less prepared to enter society as independently as possible (the goal of transition in special education) than [Student].” (P-Appendix 45)
- During Student’s tenure at Glenhaven, Parents met frequently and regularly with Glenhaven staff to review Student’s progress. (S-R4 to S-R11)
III. LEGAL STANDARDS:
- Jurisdiction of the Bureau of Special Education Appeals (BSEA)
20 U.S.C. § 1415(b)(6) grants the Bureau of Special Education Appeals (BSEA) jurisdiction over timely complaints filed by a parent/guardian or a school district “with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child.”[8] In Massachusetts, a parent or a school district, “may request mediation and/or a hearing at any time on any matter[9]concerning the eligibility, evaluation, placement, IEP, provision of special education in accordance with state and federal law, or procedural protections of state and federal law for students with disabilities.”[10] Nevertheless, it is well established that matters that come before the BSEA must involve a live or current dispute between the Parties.[11] In addition, the BSEA “can only grant relief that is authorized by these statutes and regulations, which generally encompasses orders for changed or additional services, specific placements, additional evaluations, reimbursement for services obtained privately by parents or compensatory services.”[12]
- Amending a Response
Pursuant to 801 CMR 1.01(6)(f), the Presiding Officer “may allow the amendment of any pleading previously filed by a Party upon conditions just to all Parties, and may order any Party to file an Answer or other pleading, or to reply to any pleading.” BSEA Hearing Rule I(G)(2) allows a moving party to amend a complaint if the other party consents in writing, or the Hearing Officer grants permission. Whenever a hearing request is amended, the entire process starts over for the purpose of timelines, as if the amended hearing request were a new request.[13] Although Hearing Officers are not bound by the Civil Rules of Civil Procedure, we often turn to them for guidance. Rule 15(a)(2) of the Federal Rules of Civil Procedure states that “a party may amend its pleading only with the opposing party’s written consent or the court’s leave. The court should freely give leave when justice so requires.”
- Summary Judgment
Pursuant to 801 CMR 1.01(7)(h), summary decision may be granted when there is “no genuine issue of fact relating to all or part of a claim or defense and [the moving party] is entitled to prevail as a matter of law.”[14] In determining whether to grant summary judgment, BSEA hearing officers are guided by Rule 56 of the Federal and Massachusetts Rules of Civil Procedure, which provides that summary judgment may be granted only if the “pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there are no genuine issues as to any material fact and that the moving party is entitled to judgment as a matter of law.”[15] A genuine dispute as to a material fact exists if a fact that “carries with it the potential to affect the outcome of the suit” is contested such that “a reasonable jury could resolve the point in the favor of the non-moving party.”[16] The moving party bears the burden of proof, and all evidence and inferences must be viewed in the light most favorable to the party opposing summary judgment.[17]
In response to a motion for summary judgment, the opposing party “must set forth specific facts showing that there is a genuine issue for trial.”[18] To survive this motion and proceed to hearing, the adverse party must show that there is “sufficient evidence” in their favor that the fact finder could decide for them.[19] In other words, the evidence presented by the non-moving party “must have substance in the sense that it [demonstrates] differing versions of the truth which a factfinder must resolve at an ensuing trial.”[20] The non-moving party’s evidence will not suffice if it is comprised merely of “conclusory allegations, improbable inferences, and unsupported speculation.”[21]
As such, to analyze whether the party moving for summary judgment has met its initial burden such that the burden shifts to the opposing party, I must view all the evidence it has submitted in the light most favorable to the opposing party and determine that there is no genuine issue of material fact related to the claims before me. Only if the moving party is successful in this first step does the burden then shift to the opposing party.
Hence, I first turn to the legal standards regarding graduation and termination of special education eligibility.
- Substantive Legal Standard Regarding Graduation and Special Education Eligibility.
- Massachusetts Graduation Requirements
Under Massachusetts law, a student (whether disabled or not) must meet two criteria in order to graduate from high school: (1) the student must pass the Massachusetts Comprehensive Assessment System (MCAS) test, and (2) the student must meet local requirements for graduation.[22]
- IDEA and Graduation Requirements
- Graduation Requirements
Typically, “award of academic credits, credit restoration and promotion” are “general education issues over which the BSEA has declined to take jurisdiction.”[23] The IDEA does not impose diploma requirements; “[g]raduation determinations are a regular education decision, [but] the BSEA retains jurisdiction over allegations involving a denial of FAPE regarding rejection of the final IEP.”[24] Pursuant to the IDEA, a student who has attained a high school diploma is no longer eligible for special education services, including transition services.[25]
The only requirement imposed by IDEA relative to graduation is that a school district may not properly graduate a student with a disability if he was not provided with a FAPE as required by the IDEA (e.g., a student did not receive appropriate transitional services, or his IEP was not reasonably calculated to provide him educational benefit).[26] As articulated by the Court in Doe v. Marlborough Public Schools, “nothing in the Massachusetts laws indicates that an eligible student must be graduated. Rather, eligibility requirements are set as prerequisites.”[27] Nevertheless, a parent or student with decision-making authority may not unilaterally “refuse” a diploma for which all requirements have been met. They may, however, reject the final IEP on the basis that the student did not receive FAPE. [28] Moreover, once a diploma is issued, eligibility for special education may not be “continued,” and the only “proper remedy” for a denial of a FAPE is compensatory services.[29]
- FAPE Under IDEA
In Board of Education v. Rowley, the Supreme Court set out a two-part test for determining whether there has been compliance with IDEA: (1) “has the State complied with the procedures set forth in [IDEA]” and (2) was the individualized educational program “reasonably calculated to enable the child to receive educational benefits.”[30] In addressing claims of procedural violations, 20 USC §1415(f)(3)(E)(ii) permits the Hearing Officer to find that they rose to the level of deprivation of a FAPE only when the alleged procedural violation impeded the child’s right to a free appropriate public education; significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a free appropriate public education to the parents’ child; or caused a deprivation of educational benefits.[31]
FAPE is delivered through an educational program, including secondary transition services, that offers the student the chance to meet challenging objectives and, in light of the student’s circumstances, is appropriately ambitious and reasonably calculated to enable a student to make progress.[32] Educational “levels of progress must be judged with respect to the potential of the particular child.”[33]
IV. APPLICATION OF LEGAL STANDARDS:
- Motion to Amend
Parents assert that to the extent that their Counterclaims make them the moving party on those claims only, they seek amendment pursuant to Rule I(G) of the Hearing Rules for Special Education Appeals. They do not request a recalculation of the hearing timeline.
As the District has not objected to the Motion, it is ALLOWED.
- Cross-Motions for Summary Judgment
Faced with cross-motions for summary judgment, I must review each motion separately on its own merits ‘to determine whether either of the parties deserves judgment as a matter of law.[34] If I determine that one party is not entitled to summary judgment, I must turn to the “the cross motion and give the unsuccessful movant ‘all of the favorable factual inferences that [I have] just given to the movant’s opponent.’”[35] If the non-movant’s evidence is “merely colorable” or “not significantly probative,” summary judgment may be granted.[36]
After a review of the pleadings, the exhibits, and the thoughtful arguments of Counsel, I find that denial of summary judgment for Winchester, in part, and for Parents, in the entirety, is warranted. My reasoning follows.
For Winchester to prevail on its Motion, it must demonstrate that no disputed issue of material facts exist such that Student met his competency determination and local graduation requirements and was provided a FAPE at Glenhaven. If Parents can demonstrate that there is “sufficient evidence” such that Student failed to meet his competency determination or local graduation requirements and/or was not provided a FAPE at Glenhaven, then Winchester’s Motion must be denied.
Meanwhile, for Parents to prevail on their Cross-Motion, they must show that no disputed issue of material fact exists such that Student failed to meet his competency determination or local graduation requirements and/or was not provided a FAPE at Glenhaven. If Winchester can demonstrate that there is “sufficient evidence” such that Student did, in fact, meet his competency determination and local graduation requirements and was provided a FAPE at Glenhaven, then Parents’ Cross–Motion must be denied.[37]
The material facts in this case are whether 1) Student met competency determination; 2) Student met local graduation requirements; and 3) Student was provided with a FAPE at Glenhaven.[38]
- A Disputed Issue Of Material Fact Exists As to Whether Student Has Met Competency Determination.
For Winchester to prevail on its Motion, it must establish that there is no dispute that Student met his competency determination. Here, the evidence establishes that Student’s scores necessitated the completion of EPPs. [39] According to DESE, “[e]ach EPP includes, at a minimum a review of the student’s strengths and weaknesses, based on MCAS and other assessment results, coursework, grades, and teacher input the courses the student will be required to take and successfully complete in grades 11 and 12 a description of the assessments the school will administer on a regular basis to determine whether the student is moving toward proficiency.”[40]
In its Opposition, Winchester contends that
“Although an actual, stand-alone Educational Proficiency Plan [] document was not created, the Student met the requirements of an EPP because the Student successfully completed the required courses in the relevant content areas – English Language Arts [] and Mathematics [] – and earned academic credit for those courses. Furthermore, the Student’s strengths and weaknesses were assessed and progress toward an EPP was reviewed to assess whether the Student was making progress in ELA and Math. This progress was updated regularly during his 11th and 12th grade years. Moreover, the Student’s Parents were also active participants in developing the plan to ensure that the Student’s competency requirements were met.”
As Winchester has not established that Student’s coursework and Glenhaven’s actions “met the requirements of an EPP” where an “actual, stand-alone Educational Proficiency Plan [] document was not created,” this fact remains disputed.
Turning to Parents’ Cross-Motion, I note at the outset that for Parents to prevail, they must establish that EPPs were not completed. Here, it is indisputable that an “actual, stand-alone Educational Proficiency Plan [] document was not created.” However, it remains disputed whether Student’s completion of “ELA and Math courses [] earning academic credit for those courses during his 11th and 12th grade years,” Student’s Transition Planning Form on the IEP dated June 16, 2021 to June 15, 2022 detailing the steps to help the Student make progress in ELA and Math, information in Student’s IEPs regarding his strengths and weaknesses in ELA and Math, and Glenhaven’s review and assessment of Student’s progress, “met the requirements of an EPP.”
As neither party has met its burden, a genuine issue of fact is outstanding concerning Student’s competency determination. Therefore, summary judgement for neither party is appropriate on this material issue.
- There Is No Disputed Issue Of Material Fact As to Whether Student Has Satisfied Local Graduation Requirements.
With regard to Student’s earning sufficient graduation credits, there is no dispute that Student did in fact meet graduation requirements by earning a sufficient number of academic credits in required courses. Massachusetts “authorizes one regular high school diploma for all publicly funded students, including students with IEPs.”[41] According to the Department of Elementary and Secondary Education (DESE), “by choosing to send a student to an out-of-district program, the public school district is accepting the out-of-district program as sufficient to meet local requirements that are necessary for graduation in addition to the competency determination.”[42] For programs approved by DESE in accordance with 603 CMR 28.09, “the sending public school district shall assume that the approved special education school has aligned the school curriculum with the state curriculum frameworks consistent with 603 CMR 28.09(9)(b).”[43]
Winchester offers Student’s transcript as proof of Student’s having satisfied local credit requirements. In opposition, Parents argue that Winchester improperly waived a World Language graduation requirement for Student.[44] However, the regulations do not require a student attending an out-of-district placement to satisfy all the graduation requirements of his sending school district.[45] As such, Student is not required to satisfy Winchester’s World Language requirement in order to earn his diploma.
Parents further assert that Student’s classes at Glenhaven were not comparable to those at Winchester High School and offer as evidence Student’s sample work product in a Pre-Calculus class. However, such disputed issue of fact is not material First,, Glenhaven, as a program approved by DESE in accordance with 603 CMR 28.09, offers a curriculum that is aligned of with the state curriculum frameworks consistent with 603 CMR 28.09(9)(b).[46] Hence, it is reasonable of Winchester to rely on Student’s grades at Glenhaven in determining whether he was making academic progress and meeting his graduation requirements.[47] Moreover, Student’s MCAS score in Math shows a 63% Growth Percentile. In addition, because the BSEA has no authority over regular education disputes[48], if Parents believe that Glenhaven’s curriculum does not align with that established by DESE, they must raise this concern with DESE.[49] Parents have not set forth facts showing there is a genuine issue for hearing.[50] Therefore, there is no disputed issue of material fact that Student has satisfied local graduation requirements. As such, summary judgment is appropriate for Winchester on this issue.
Because I have found that there is no disputed issue of material fact that Student has satisfied local graduation requirements, Parents will be unable to establish the opposite, that is, that Student has undisputably not satisfied local graduation requirements. Therefore, Parents’ Cross-Motion fails on this issue.
- There Is No Disputed Issue Of Material Fact That Winchester Offered Student A FAPE During The 2020-2021 And 2021-2022 School Years.
The U.S. District Court for the District of Massachusetts held in Doe v. Marlborough Public Schools that a school district may not properly graduate a student with disabilities if the student was not provided with FAPE as required by IDEA (e.g., a student did not receive appropriate transitional services, or his IEP was not reasonably calculated to provide him educational benefit).[51] Nevertheless, even if I view all evidence and inferences in the light most favorable to the Parents, I cannot find that a genuine issue of material fact exists as to whether Winchester offered Student a FAPE during 2020-2021 and 2021-2022 school years.
First, the statute of limitations limits my ability to examine any claims prior to April 9, 2022.[52] In addition, prior to January 23, 2023, Parents accepted in full all IEPs for Student. As such, even if “there was no Transition IEP goal in [Student’s] IEP” and “no transition or vocational specialists in [the] 2021-2022 IEP,” such IEP was accepted in full during the term of its pendency and may not be revisited at this time absent a showing of lack of implementation, which, as discussed below, was not made here.
For the first time, Parents now assert that “Glenhaven failed to implement [Student’s] IEP.” As evidence thereof, Parents point to the fact that Student “was frequently and persistently
restricted in what he could access, from school, in the community, and at home, thereby keeping him from services and instruction that would allow him to develop necessary skills and generalize them.” However, that Student was unable to access the community and his home due to inconsistent behavioral regulation consistent with his profile[53] does not equate to lack of implementation on the part of Glenhaven. Parents offered no evidence that Glenhaven failed to respond to Student’s behavioral challenges[54], or that the services in the IEP did not continue to be made available to Student. As such, Parents cannot now argue lack of implementation.[55] In short, there is no evidence offered by Parents that Student’s fully accepted and expired IEPs were not implemented.[56] Therfore, there is no disputed issue of material fact that Winchester offered student a FAPE during the 2020-2021 and 2021-2022 school years.
Because I have found that there is no disputed issue of material fact that Winchester offered student a FAPE during the 2020-2021 and 2021-2022 school years, Parents will be unable to establish the contrary, that is, that, undisputably, Student was not offered a FAPE during this time period. Therefore, Parents’ Cross-Motion fails on this issue.
- There Is A Disputed Issue Of Material Fact Whether The November 2022 and January 2023 IEPs Offered Student A FAPE In The Least Restrictive Environment (LRE).
As an initial matter, I address Parents’ argument that because Winchester proposed an IEP and placement at Glenhaven for Student from January through March 2024, Winchester agreed that [Student] continued to be eligible for special education at that time and required a free appropriate public education. This argument is not only unpersuasive but it is also disingenuous. The District clearly notified Parents of their intention to graduate Student when proposing the November 2022 IEP as that IEP was set to conclude in June 2023 upon Student’s anticipated graduation date. In addition, in May 2023, Parents and Winchester participated in mediation specifically because Winchester and Parents disagreed that Student continued to be eligible for a FAPE, and Winchester agreed to extend his placement at Glenhaven beyond his graduation date as a courtesy pending a response from DMH as to an opening in its residential adult services program. As such, Parents cannot now assert that Winchester in fact, “agreed that [Student] continued to be eligible for special education at that time and required a free appropriate public education.”
Parents’ argument that Glenhaven failed to implement Students IEPs while Student “was frequently and persistently restricted in what he could access, from school, in the community, and at home” is also unpersuasive. Although Student’s behaviors, at times, limited his access to some components of Glenhaven’s program, Student’s behavior vacillated and restrictions were imposed and then lifted based on his presentation. Moreover, such restrictions do not equate to lack of implementation, nor do they render the IEP substantively deficient, as the IEP continued to address Student’s behavior needs, and Student’s access was adjusted as needed.[57]
However, there is clearly a disputed issue of material fact as to whether the November 2022 and January 2023 IEPs offered student a FAPE in the LRE. According to Winchester, Glenhaven’s progress reports demonstrate that Student made consistent progress on many of his IEP goals and objectives, and his engagement in his Transition goal, while not achieved to the level in the IEP, had “increased.” Moreover, by spring of 2024, Student’s long-term clinician at Glenhaven and Parents reported to Dr. Bernstein an improvement “in the last six months” in Student’s emotional and behavioral presentation. Parents stated that they were “grateful to Glenhaven for the years that [Student] [was] stable and made good progress there.” Similarly, Ms. Falconi stated that Student had “made wonderful gains at Glenhaven over the years.” Dr. Bernstein found that “[o]n a standardized measure of intellectual functioning, [Student] performed better than in previous assessments” and noted that an improvement “in the last six months” in Student’s “antisocial behaviors” and emotional dysregulation such that, while “still pronounced,” Student’s emotional and behavioral problems were, in 2024, “less acute than in 2022.”
Parents dispute that the above evidence establishes provision of FAPE, and offer that Student has not made effective progress. Notably, Glenhaven noted minimal or insufficient progress on all goals other than academic ones, and the N1 issued from a March 2023 Team meeting states that Glenhaven staff agreed that Student has not met his IEP goals and will require additional support vocationally and residentially after June of 2023. In addition, Dr. Bernstein described Student’s progress as “slow” and commented on “vocational and IEP living skills that [Student] has not yet met.” She pointed to weaker adaptive living skills in all major areas compared to 2022. Dr. Bernstein found that Student’s “decline in adaptive functioning contrasted sharply with his improvement in cognitive functioning. It highlighted the dramatic discrepancy between his intellectual strengths and mental health disabilities.” Similarly, Ms. Falconi concluded that “especially for his profile, [Student] has not made effective progress in many other areas of disability-related need, including transition-related, social pragmatics, and social emotional and behavior skills, as evidenced by [Student’s] continued struggles, the results of his recent neuropsychological report, and the ongoing feedback and data from Glenhaven.” As such, a genuine dispute of material fact exists as to whether Student’s progress was commensurate with his abilities.[58]
In addition, that Student’s progress was not consistent among all goals does not by itself suggest an inadequate IEP While goal-oriented, the IDEA does not guarantee any specific results,[59] and, the determination as to whether a FAPE has been provided does not require the court to examine whether all transition goals were met.[60] In fact, a “district is not required to ensure a Student is successful in fulfilling all desired goals. The IDEA is meant to create opportunities for disabled children, not to guarantee a specific result.”[61] Moreover, as noted by Dr. Bernstein, Student’s challenges are “life-long.” Ms. Falconi’s and Ms. Fahey’s focus on Student’s continued deficits and his unpreparedness for independent living outside of Glenhaven is improper when assessing FAPE. “[T]he inquiry is not whether the student was fully prepared for independent living or whether he continued to have significant problems in some areas. All these arguments tend to look at the result, where the correct standard is to look at whether the school, by virtue of a reasonably calculated IEP, made educational benefit available to the Student.”[62]
Moreover, Parents raise a genuine issue of material fact as to whether Student’s November 2022 and January 2023 IEPs failed to “include sufficient goals, objectives, and services in vocational, transition, and independent living skills, as required by his needs and recommended by various providers” and whether his Transition goal in the 2023 IEP was based on a Transition Assessment. In fact, Parents raised such concerns in their rejection letters in January 2023 and March 2024. As such, Winchester is not entitled to summary judgment on the issue of whether the November 2022 and January 2023 IEPs offered student a FAPE in the LRE.
Nevertheless, although evidence of inconsistent progress allows Parents to survive the District’s Motion[63], it does not render summary judgment for Parents appropriate either. Rather than relying solely on progress (or lack-thereof), BSEA decisions look at whether a student’s progress is commensurate with his abilities.[64] It is undisputed that Parents did not contest any aspect of Student’s education until 6 months prior to his anticipated graduation date. It is furthermore undisputed that Parents at all times accepted Glenhaven as an appropriate placement for Student. Although Parents were open to exploring other programs in January 2023, they accepted the placement on the placement page of the November 2022 IEP. Similarly, in March 2024, while Parents questioned “whether there is a program for [Student] better tailored to [Student’s] current and future needs, or whether Glenhaven is the best available for him,” they again accepted the placement at Glenhaven. While Parents’ experts have raised an inference of progress not commensurate with ability, there is no specific evidence thereof in the submitted exhibits[65] ; specifically, where Parents accepted the placement at Glenhaven as appropriate in January 2023 and March 2024 (even while partially rejecting the IEPs), I am disinclined to find as a matter of law that Glenhaven was not appropriate to meet Student’s needs.
As such, Parents too are not entitled to summary judgment on the issue of whether the November 2022 and January 2023 IEPs failed to offer Student a FAPE in the LRE.
- There Is a Disputed Issue Of Material Fact Whether, In the Event that Student’s Diploma Was Improperly Issued, and the District Denied Student a FAPE, The District’s Provision Of Continued Residential Placement At Glenhaven For Twelve (12) Months After The Student Met His Graduation Requirements More Than Offset Any Compensatory Services Owed.
Once a diploma is issued, eligibility for special education may not be “continued,” and the only “proper remedy” for a denial of a FAPE is compensatory services.[66] Here, the District contends that if the Hearing Officer finds that Student is owed compensatory services, the District’s provision of continued residential placement at Glenhaven for the last twelve (12) months was equitably sufficient.
However, because compensatory education is “an equitable remedy fashioned to fit an individual student’s need,” it is premature at this stage to determine whether 12 months of compensatory services are sufficiently “’equal in time and scope’ to what [Student] would have received while eligible .”[67] After all, if it is ultimately determined that Student was improperly graduated in June 2023 but should have remained eligible for special education until age 22, then the District has not yet offset a potential denial of a FAPE through the continuation of Student’s residential placement at Glenhaven for an additional year beyond graduation. On the other hand, if it is determined that Student was improperly graduated in June 2023, and that he should have remained eligible for an additional period of time less than or equal to a full year, the offset would be sufficient. As such, the issue of compensatory education must be addressed at Hearing.
V. ORDER:
Parents’ Motion to Amend is ALLOWED. Winchester’s Motion for Summary Judgment is ALLOWED, IN PART, and DENIED, IN PART. Specifically, summary judgment in favor of Winchester is ALLOWED as to whether Student satisfied local graduation requirements and whether Winchester offered student a FAPE during the 2020-2021 and 2021-2022 school years.
Parents’ Cross-Motion for Summary Judgment is DENIED.
The hearing scheduled in this matter will proceed on July 30 and 31, and August 30, 2024. The parties will participate in a conference call on July 22, 2024 at 5:00PM. The parties are instructed to call 857-327-9245 and to enter 498 093 73# when prompted to do so to join the call.
So Ordered,
s/ Alina Kantor Nir
Alina Kantor Nir
Date: July 19, 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 in the state superior court of competent jurisdiction or in the District Court of the United States for Massachusetts, for review. 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] In support of Winchester’s Motion for Summary Judgment, the District submitted 25 exhibits marked as S-Appendix 1 through 25.
[2] In their Motion to Amend, Parents state that they do not seek a recalculation of the timelines.
[3] In support of their Cross-Motion, Parents submitted 46 exhibits marked as P-Appendix 1 through 46.
[4] In support of its Opposition, Winchester submitted 12 exhibits, marked herein as S-R1 to S-R12.
[5] In Support of it Supplement, Winchester filed one exhibit, marked herein as S-S1.
[6] According to an email dated October 22, 2021 from Cori Slater, Glenhaven’s Director of Education for the 2021-2022 and 2022-2023 school years, “There [was] an error on the report …. [Student] did meet partial expectations for both [subject matters] which would not require him to retake the MCAS due to the modified competency determination. On page 2 it reads he did not meet it but on Page 1 at the bottom it does say he did and met the requirement.” (S-R3)
[7] Although on the June 2021 IEP and the 2022 IEP, ESY was checked off, it was not checked off on the November 2022 IEP. However, the Schedule Modification section of the November 2022 IEP indicated, as did the prior IEPs, that Glenhaven is a year-round program, meeting 216 days per year to prevent social, emotional or academic regression. (S-Appendix 2, S-Appendix 3, S-Appendix 8) In addition, the IEP likely did not include ESY as the District considered Student graduated as of June 2023.
[8] See 34 C.F.R. §300.507(a)(1).
[9] Limited exceptions exist that are not here applicable.
[10] 603 CMR 28.08(3)(a).
[11] See In Re: Student v. Bay Path Reg’l Vocational Tech. High Sch., BSEA # 18-05746 (Figueroa, 2018).
[12] In Re: Georgetown Pub. Sch., BSEA #1405352 (Berman, 2014).
[13] But see BSEA Hearing Rule I(G) (”….However, to the extent the amendment merely clarifies issues raised in the initial hearing request, the date of the initial hearing request shall be controlling for statute of limitations purposes. For issues not included in the original hearing request, the date of the amended hearing request shall be controlling for statute of limitations purposes”).
[14] 801 CMR 1.01(7)(h).
[15] Id.
[16] French v. Merrill, 15 F.4th 116, 123 (1st Cir. 2021); see Maldanado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 581 (1st Cir. 1994).
[17] Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 252 (1986).
[18] Anderson, 477 U.S. at 250.
[19] Id. at 249.
[20] Mack v. Great Atl. & Pac. Tea Co., 871 F.2d 179, 181 (1st Cir. 1989).
[21] Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990).
[22] See Mass. Gen. Laws c. 69, § 1D (i); Doe v. Marlborough Pub. Sch., No. CIV. A. 09-11118-WGY, 2010 WL 2682433, at *5 (D. Mass. June 30, 2010); Administrative Advisory SPED 2018-2: Secondary Transition Services and Graduation with a High School Diploma, which may be found athttps://www.doe.mass.edu/sped/advisories/2018-2.html.
[23] In Re: Bay Path Reg’l Vocational Tech’l High Sch., BSEA #1805746 (Figueroa, 2018).
[24] In Re: Blue Hills Reg’l Tech’l High Sch., BSEA # 2008213 (Figueroa 2016) (referencing Administrative Advisory 2018-2 which states that a “parent or student with decision-making authority may not unilaterally ‘refuse’ a diploma for which all requirements have been met. They may, however, reject the final IEP on the basis that the student did not receive FAPE. If this occurs, the student and district have opportunities to resolve the disagreement through mediation or formal dispute resolution procedures under the IDEA. This includes filing a due process complaint and requesting a hearing with the BSEA”); see Morales v. Newport-Mesa Unified Sch. Dist., 768 F. App’x 717, 719 (9th Cir. 2019) (“Morales cannot challenge Newport-Mesa’s waiver of graduation requirements as a denial of a FAPE under the IDEA”).
[25] 34 CFR 300.122(a)(3)(i); see M.G.L. c. 71B, § 1 (defining a “school age child” as one without a high school diploma); see also Doe v. Marlborough Pub. Sch., No. CIV. A. 09-11118-WGY, 2010 WL 2682433, at *5 (D. Mass. June 30, 2010).
[26] Marlborough Pub. Sch., 2010 WL 2682433, at *5 (D. Mass. June 30, 2010); see Kevin T. v. Elmhurst Comm. Sch. Dist. No. 205, 2002 WL 433061, at *14 (N.D.Ill. Mar. 20, 2002) (citing Chuhran v. Walled Lake Consol. Sch., 839 F.Supp. 465, 474 (E.D.Mich.1993), aff’d, 51 F.3d 271 (6th Cir. 1995)); see also In Re: Caleb & Nauset Public Schools, BSEA #15-05976 / 15-07508 (Byrne, 2016); Quabbin Regional School District, BSEA # 05-3115 and 05-4356 (Crane, 2005)
[27] Marlborough Pub. Sch., 2010 WL 2682433, at *6 (citing to several cases) (emphasis added); see Geraldine M. v. Ashland Pub. Sch., 501 IDELR 265 (SEA MA, 1979) (finding that although the school district’s graduation criteria were legitimate and Geraldine had met them successfully, her particular situation involving a very recent diagnosis of hearing loss for which she never received special education services necessitated continuation of special education services).
[28] See Administrative Advisory SPED 2018-2: Secondary Transition Services and Graduation with a High School Diploma.
[29] Dracut Sch. Comm. v. Bureau of Special Educ. Appeals of the Massachusetts Dep’t of Elementary & Secondary Educ., 737 F. Supp. 2d 35, 55 (D. Mass. 2010) (“issuance of the diploma was improper because C.A. was denied a FAPE. If the Hearing Officer had wanted to continue eligibility, he should have continued the “stay put” order, issued pursuant to 20 U.S.C. § 1415(j), which would have prohibited Dracut from giving C.A. his diploma. Now that Dracut has issued the diploma, the proper remedy is compensatory services”); see In Re: Wareham Pub. Sch., BSEA # 2202891 (Berman, 2021) (“because Student has met all local graduation requirements, and has not been deprived of FAPE, Wareham may graduate him, thereby terminating his special education eligibility, unless he is entitled to compensatory services”).
[30] 458 U.S. at 206-207.
[31] See Geraldo and Springfield Pub. Sch., BSEA # 06-4908 and # 06-5863 (Byrne, 2007) (where the district unenrolled a student, the Hearing Officer found the “extent of procedural noncompliance in this matter [to be] startling”). On the other hand, procedural violations that are technical or de minimis are not compensable. See In Re: Student v. Winchester Pub. Sch., BSEA # 18-04106 (Berman, 2018).
[32] Endrew F. v. Douglas County School District Re-1, 137 S.Ct. 988, 992 (2017); see Administrative Advisory SPED 2018-2: Secondary Transition Services and Graduation with a High School Diploma.
[33] Lessard v. Wilton Lyndeborough Coop. Sch. Dist., 518 F.3d 18, 29 (1st Cir. 2008); see Marlborough Pub. Sch., 2010 WL 2682433, at *8.
[34] See Drew Co., Inc. v. Wolf, 511 F. Supp. 3d 15, 17–18 (D. Mass. 2021) (“Cross-motions for summary judgment do not alter the basic Rule 56 standard, but rather simply require [the court] to determine whether either of the parties deserves judgment as a matter of law on facts that are not disputed”) (quoting Ferguson v. Gen. Star Indem. Co., 582 F.Supp.2d 91, 98 (D. Mass. 2008) (quoting Adria Int’l Grp., Inc. v. Ferré Dev., Inc., 241 F.3d 103, 107 (1st Cir. 2001).
[35] Nucap Indus., Inc. v. Robert Bosch LLC, No. 15-2207, 273 F.Supp.3d 986, 997–98, 2017 WL 1197104, at *6 (N.D. Ill. Mar. 31, 2017) (quoting R.J. Corman Derailment Servs., LLC v. Int’l Union of Operating Engrs., Local Union 150, 335 F.3d 643, 647–48 (7th Cir. 2003)).
[36] Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249–50 (1986).
[37] Id. at 249.
[38] See Mass. Gen. Laws c. 69, § 1D (i); Doe v. Marlborough Pub. Sch., No. CIV. A. 09-11118-WGY, 2010 WL 2682433, at *5 (D. Mass. June 30, 2010); Administrative Advisory SPED 2018-2: Secondary Transition Services and Graduation with a High School Diploma.
[39] Pursuant to 603 CMR 30.03(3) and DESE’s Massachusetts Graduation Requirements and Related Guidance, https://www.doe.mass.edu/mcas/graduation.html, for the class of 2023 students receiving scores lower than 472 in ELA and 486 in Math, must complete an EPP. See Questions and Answers about the EPP, Last updated 8/27/2021, which may be found at https://www.doe.mass.edu/assessment/epp/qa.html; Massachusetts Graduation Requirements and Related Guidance, https://www.doe.mass.edu/mcas/graduation.html
[40] Id.
[41] An out-of-district program may only issue a
“‘diploma’ and indicate ‘high school graduation’ if the student has met the state MCAS competency determination standard.
–a. In these circumstances, either the sending school district or the out-of-district program, or both jointly, may award a high school diploma to the student.
–b. If the high school diploma is awarded by the out-of-district program, then the diploma shall indicate that the student has met state standards for high school graduation, and that the diploma is awarded “by the [Name of out-of-district School or Program,] according to the standards of the Commonwealth of Massachusetts.”
–c. A student who earns the high school diploma from the out-of-district placement is also entitled, upon request, to receive a diploma from the sending school district indicating that the student met state and local graduation standards under the auspices of the school district.”
Administrative Advisory SPED 2018-2: Secondary Transition Services and Graduation with a High School Diploma.
[42] Administrative Advisory SPED 2002-4 — Revised: Special Education Students in Out-of-District Placements — Participation in MCAS Testing and High School Graduation Standards which may be found at https://www.doe.mass.edu/sped/advisories/02_4.html.
[43] Id.
[44] See Morales, 768 F. App’x at 720 (finding a triable issue of fact as to whether Newport-Mesa waived graduation requirements); see also In re: Student with a Disability, 2021-02, 80 IDELR 88 (SEA MT 2021) (“the IEP team’s waiver of graduation requirements was “extreme” since the teen only earned a half a credit during ninth grade in PE and received 1,410 minutes per week of SDI consisting of communication and self-help/independence”).
[45] See Administrative Advisory SPED 2018-2: Secondary Transition Services and Graduation with a High School Diploma.
[46] See Administrative Advisory SPED 2002-4 — Revised: Special Education Students in Out-of-District Placements — Participation in MCAS Testing and High School Graduation Standards; see also In re: Student v. Bedford Public Schools (Ruling On Bedford Public Schools’ Motion For Summary Judgment, Parents’ Request To Amend Hearing Request, and Parents’ Counter-Motion For Summary Judgment), BSEA# 2211208 (Kantor Nir, 2022) (“[w]hether Student has taken classes ‘comparable’ to regular high school classes is not relevant or material”) (internal quotations and citations omitted).
[47] See Mr. P v. W. Hartford Bd. of Educ., 885 F.3d 735, 759 (2d Cir. 2018) (finding that “[w]hile STRIVE is an alternative high school, not a regular education environment, “’STRIVE’s curriculum is aligned with that of the regular education [at] West Hartford high schools in terms of content,’” and, as such, it was reasonable to rely on Student’s “steady and timely progression through each grade and his much improved grades and test scores [to] indicate that he made substantial progress at STRIVE”).
[48] See Tindell v. Evansville-Vanderburgh Sch. Corp., 805 F. Supp. 2d 630, 652 (S.D. Ind. 2011) (where parents asserted that “the graduation should not be upheld on academic grounds because … his rapid acquisition of credits largely through the credit recovery program violated Indiana’s seat time requirements,” the court agreed with the defendant that “[i]t’s a local decision as far as how the credit was awarded and … the school has the ultimate decision … so long as they’re following and looking at curriculum and meeting the standards”); see also Ludlow Public Schools, BSEA # 1603808 (Figueroa, 2015) (“generally applicable provisions for oversight of publicly funded private school students is within the purview of DESE or potentially the legislature, but not the BSEA”); Beaumont Independent School District, 309-SE-060, 36 IDELR 60 (SEA TX 2001) (hearing officer has no authority to order the district to waive or restore credits so the student could graduate).
[49] See Bd. of Educ. of Northport-E. Northport Union Free Sch. Dist. v. Ambach, 90 A.D.2d 227, 236, 458 N.Y.S.2d 680, 686 (1982), aff’d, 60 N.Y.2d 758, 457 N.E.2d 775 (1983) (“those entities which are constitutionally and statutorily delegated the authority to conduct and manage our State educational affairs can regulate … the integrity of a high school diploma”).
[50] See Anderson, 477 U.S. at 250.
[51] Marlborough Pub. Sch., 2010 WL 2682433, at *6 (emphasis omitted).
[52] See 34 CFR 300.507(a)(2) (under the IDEA, a due process complaint is timely if filed within two years of the date that the parent or district knew or should have known about the action forming the basis for the complaint). Certain exceptions apply but are irrelevant in the instant matter).
[53] Dr. Bernstein “emphasized the impact of limited cognitive ability on [Student’s] social-emotional and adaptive functioning.”
[54] See 20 U.S.C. § 1414(d)(3)(B)(i) (creating an adequate IEP under the IDEA requires that a school district consider “positive behavioral interventions” where a student’s behavior impedes his learning).
[55] See In re: Student with a Disability, DE SC 20-04, 76 IDELR 202 (SEA DE, 2020) (“When Student had a spike in challenging behaviors at the start of the X grade year, the School responding proactively …. For the reasons stated, I find no violation of the IDEA or corresponding state and federal regulations related to the implementation”).
[56] See, e.g., In Re: Blue Hills Regional Technical High School, BSEA # 2008213 (Figueroa, 2020) (it is well accepted that “once a fully accepted and implemented IEP has expired, hearing officers are precluded from re-visiting those IEPs so long as the parent had an opportunity to participate in the development of the IEP in question and received the notice of parental rights regarding IEP acceptance/rejection and dispute resolution options”); In Re: Student and Middleboro Public Schools (Ruling on Motion for Summary Judgment), BSEA #1908178 (Berman, 2019) (compensatory relief is not available for the periods corresponding to fully accepted, implemented, and expired IEPs); In Re: Sudbury Public Schools, BSEA # 05-4726 and # 05-4827 (Crane, 2005) (“the general and well-settled rule is that acceptance of an IEP precludes the Hearing Officer from considering its appropriateness”).
[57] See Kass v. W. Dubuque Cmty. Sch. Dist., 101 F.4th 562, 570–71 (8th Cir. 2024) (where “the May 2020 IEP provided instruction in Brody’s areas of need in both the school and community setting,” Parents’ claim that the May 2020 IEP was “substantively deficient because the shortened school days denied Brody substantive benefits derived from instruction in physical education, art, sex education, and lunch” failed as the court found that “this overlooks how Brody has met all his graduation requirements in core academics and “had only unmet transition needs”).
[58] See Lessard, 518 F.3d at 29.
[59] See id.; In Re: Dracut Public Schools, BSEA # 08-5330 (Crane, 2008) (“Also, as with other parts of FAPE, the transition services requirement does not imply a substantive standard or a particular measure of progress but rather specifies the perspective that participants in the process should strive to attain but does not establish a standard for evaluating the fruits of that process. At the same time, Congress has noted the importance of providing effective transition services under the IDEA”) (internal citations omitted). Although an IEP is not a guarantee of a specific educational or functional result for a student with a disability, the IDEA does provide for revisiting the IEP if the progress the IEP Team expects is not occurring. See Administrative Advisory SPED 2018-2: Secondary Transition Services and Graduation with a High School Diploma.
[60] K.C. v. Nazareth Area Sch. Dist., 806 F. Supp. 2d 806, 826 (E.D. Pa. 2011).
[61] Nazareth Area Sch. Dist., 806 F. Supp. 2d at 822 (citing Rowley, 458 U.S. at 192).
[62] Marlborough Pub. Sch, 2010 WL 2682433 at *9 (finding that the hearing officer “did not use the right approach” as the Decision “incorrectly tend[ed] to look at the Student’s IEP as if it were a retrospective, not a snapshot”); Nazareth Area Sch. Dist., 806 F. Supp. 2d at 825. See also In Re: Wareham Pub. Sch., BSEA # 2202891 (Berman, 2021) (“the IDEA does not require schools to remediate all of a student’s disability-related challenges before graduating him”); In Re: Harvard Pub. Sch., BSEA # 2108881 (Kantor Nir, 2021) (finding that school districts are not obligated to continue services for the duration that a child’s needs persist); Carver Pub. Sch., BSEA # 00-2574 (Beron, 2001) (“failure to meet goals and objectives are not grounds for invalidating a diploma”); In re: Child with Disability, 88-18, 401 IDELR 220 (VA SEA, 1988) (“it is firmly established that while a school district is responsible for formulating and pursuing IEP goals and objectives, it is not bound to fulfill them. Similarly, a school district is not required to provide all possible services.… [P]rovision of a FAPE does not require “the furnishing of every special service necessary to maximize each handicapped child’s potential”); Bd. of Ed., 10-0043, 55 IDELR 113 (CT SEA, 2010) (“the transition plan does not need to be the best as long as it provides the student with the educational benefit to allow her to proceed to post-secondary employment, education or community involvement”).
[63] Anderson, 477 U.S. at 257.
[64] See, for example, Southwick Tolland Regional School District, BSEA # 06-6583 (Crane, 2006); In Re: Student v. Newton Public Schools, BSEA # 14-08637 (Figueroa, 2015).
[65] See Endrew F., 137 S.Ct. at 1001 (“[T]he IDEA demands …. an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances”); see also Johnson v. Bos. Pub. Sch., 906 F.3d 182, 196 (1st Cir. 2018) (relationship between speed of advancement and educational benefit must be viewed in light of child’s individual circumstances).
[66] Dracut Sch. Comm. v. Bureau of Special Educ. Appeals of the Massachusetts Dep’t of Elementary & Secondary Educ., 737 F. Supp. 2d 35, 55 (D. Mass. 2010) (“issuance of the diploma was improper because C.A. was denied a FAPE. If the Hearing Officer had wanted to continue eligibility, he should have continued the “stay put” order, issued pursuant to 20 U.S.C. § 1415(j), which would have prohibited Dracut from giving C.A. his diploma. Now that Dracut has issued the diploma, the proper remedy is compensatory services”); see In Re: Wareham Pub. Sch., BSEA # 2202891 (Berman, 2021) (“because Student has met all local graduation requirements, and has not been deprived of FAPE, Wareham may graduate him, thereby terminating his special education eligibility, unless he is entitled to compensatory services”).
[67] Id.