Boston Public Schools – BSEA # 11-4676



<br /> Boston Public Schools – BSEA # 11-4676<br />

COMMONWEALTH OF MASSACHUSETTS

Division of Administrative Law Appeals

Bureau of Special Education Appeals

In Re: Boston Public Schools

BSEA # 11-4676

AMENDED RULING ON BOSTON PUBLIC SCHOOLS’ MOTION TO DISMISS

Introduction

On January 26, 2011, Parents filed a hearing request. Boston Public Schools (Boston) filed a response, essentially denying any wrong doing.1

On March 18, 2011, Parents filed a motion to file an amended hearing request; and on March 24, 2011, Parents’ motion was allowed. Parents’ amended hearing request seeks prospective and compensatory relief for Student from the Boston, including claims regarding transition services. In addition, the amended hearing request includes systemic claims and seeks systemic relief against Boston.

On March 28, 2011, I issued a Ruling addressing Boston’s first Motion to Dismiss. That Ruling dismissed Parents’ claims prior to January 26, 2009 pursuant to the applicable two-year statute of limitations.

On March 31, 2011, Parents filed a motion for reconsideration of that Ruling, which motion has been allowed. Consequently, I issue the instant Amended Ruling.

Motion to Dismiss Standard

BSEA Hearing Rules and the Massachusetts Executive Office of Administration and Finance Adjudicatory Rules of Practice and Procedure both provide that a Hearing Officer may allow a motion to dismiss if the moving party fails to state a claim upon which relief may be granted.2

Similarly, the federal courts have concluded that a motion to dismiss under Federal Rules of Civil Procedure 12(b)(6) may be allowed if the court finds “beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”3

Accordingly, a motion to dismiss should be granted only if the party filing the appeal can prove no set of facts in support of his or her claim that would entitle him or her to relief that the BSEA has authority to order. That is, a hearing officer may dismiss a case if he or she cannot grant relief under either the federal or state special education statutes or the relevant portions of Section 504 of the Rehabilitation Act, after considering as true all allegations made by the party opposing dismissal (here, the Parents), and drawing all reasonable inferences in their favor. Conversely, a hearing officer must deny a motion to dismiss if after “accepting as true all well-pleaded factual averments and indulging all reasonable inferences in the [Parents’] favor…, recovery [can be justified] under any applicable legal theory ….”4

Generally, courts consider only the initial complaint and answer in deciding motions to dismiss, treating the motion as one for summary judgment if they consider materials in additional to these pleadings. Other information submitted by the parties may be considered, however, without formally converting the motion to dismiss to a motion for summary judgment, where to do so would not prejudice the other party.5 Here I consider facts alleged in the attachments to Parents’ opposition to the Motion to Dismiss and in an affidavit filed by Boston, in addition to Parents’ hearing request. Parents and Boston have agreed that I may resolve Boston’s motion on the basis of a motion to dismiss standard.

Facts

The following facts are taken from Parents’ amended hearing request and from the attachments to their opposition to Boston’s Motion to Dismiss. These facts are assumed to be true only for purposes of the instant ruling. Additional facts included below are not disputed by the parties.

Student is twenty-years-old and attends East Boston High School. He has been diagnosed with significant cognitive delays and has been on an individualized education program (IEP) from Boston since 1993.

Student is bilingual, but his Parents are not. They speak Haitian Creole and read French. Consequently, Parents’ native language (for purposes of both speaking and writing) is not English.

For the 2005-2006 school year, Boston held a Team meeting that Parents attended, but no interpreter was present. Boston sent to Parents an English-language proposed IEP but did not send a translated copy of the IEP. Parents signed the IEP, thereby accepting it in full.

For the 2006-2007 school year, Boston held a Team meeting that Parents attended. Parents brought with them an after-school supervisor who spoke Haitian Creole. Boston did not provide an interpreter. Boston sent to Parents an English-language proposed IEP but did not send a translated copy of the IEP. Parents signed the IEP, thereby accepting it in full.

For the 2007-2008 school year, Boston held a Team meeting that Parents attended. Parents brought with them the above-referenced after-school supervisor who spoke Haitian Creole. Boston did not provide an interpreter. Boston sent to Parents an English-language proposed IEP but did not send a translated copy of the IEP. Parents signed the IEP, thereby accepting it in full.

Student turned 18 years old on August 3, 2008. However, Boston did not provide Parents with a translated copy of the required notice advising them that decision-making transferred to Student on his 18 th birthday.

For the 2008-2009 school year, Boston held a Team meeting to which Student was not invited. Neither Student nor his Parents attended. Parents sought, unsuccessfully, to reschedule the meeting, but Boston did not return their calls. Boston did not make any attempt to secure the attendance of Parents or Student at the IEP Team meeting, other than to send initial advance notice of the meeting.

By the time of the Team meeting for the 2008-2009 school year, Student had turned 18 years old. Boston did not send to Parents the requisite notice of the transfer of educational decision-making rights when Student reached the age of majority. Boston sent to Parents and Student an English-language proposed IEP but did not send a translated copy of the IEP. Student signed the IEP on February 4, 2009, thereby accepting it in full.

Parents did not receive a French-language copy of the notice of procedural safeguards with respect to the 2005-2006, 2006-2007, 2007-2008, and 2008-2009 school years.6

Parents take the position that other forms were not provided at all or were not provided in the French language. These include, for example, translated copies of IEP Team notices and invitations to the Student to attend Team meetings. See Parents’ opposition at page 10. I accept these factual representations for purposes of ruling on the instant motion.

Statute of Limitations

It is not disputed that Student is an individual with a disability, falling within the purview of the IDEA7 and the Massachusetts special education statute.8 The IDEA was enacted “to ensure that all children with disabilities have available to them a free appropriate public education [FAPE] that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.”9 Student’s right to FAPE is assured through the development and implementation of an individualized education program or IEP.10

The IDEA’s statute of limitations, which is applicable to the instant dispute, reads as follows:
(C) Timeline for requesting hearing

A parent or agency shall request an impartial due process hearing within 2 years of the date the parent or agency knew or should have known about the alleged action that forms the basis of the complaint, or, if the State has an explicit time limitation for requesting such a hearing under this subchapter, in such time as the State law allows.

(D) Exceptions to the timeline

The timeline described in subparagraph (C) shall not apply to a parent if the parent was prevented from requesting the hearing due to —

(i) specific misrepresentations by the local educational agency that it had resolved the problem forming the basis of the complaint; or

(ii) the local educational agency’s withholding of information from the parent that was required under this subchapter to be provided to the parent .11

Boston relies upon part C, above, which sets forth the generally-applicable two-year statute of limitations, while Parents rely upon the underlined portions of part D, above, for purposes of seeking an exception to the two-year rule. The question to be considered is whether this exception applies here.

Subpart D(ii) uses the language “ required under this subchapter ”. The statutory phrase “this subchapter” refers to part B of the federal special education statute. Part B is entitled “Assistance for Education of all Children With Disabilities” and is found at 20 USC § 1411 through § 1419.12 Thus, withholding of any information within these sections of the IDEA is pertinent to subpart D(ii) of the statute of limitations.

It is not disputed that required information under subpart D(ii) includes a notice of procedural safeguards that the school district must provide to parents at least once each year pursuant to 20 USC § 1415(d). The IDEA requires that this notice include the following information:
a full explanation of the procedural safeguards, written in the native language of the parents (unless it clearly is not feasible to do so) and written in an easily understandable manner, available under this section and under regulations promulgated by the Secretary relating to–
(A) independent educational evaluation;
(B) prior written notice;
(C) parental consent;
(D) access to educational records;
(E) the opportunity to present and resolve complaints, including– (i) the time period in which to make a complaint; (ii) the opportunity for the agency to resolve the complaint; and (iii) the availability of mediation;
(F) the child’s placement during pendency of due process proceedings;
(G) procedures for students who are subject to placement in an interim alternative educational setting;
(H) requirements for unilateral placement by parents of children in private schools at public expense;
(I) due process hearings , including requirements for disclosure of evaluation results and recommendations;
(J) State-level appeals (if applicable in that State);
(K) civil actions, including the time period in which to file such actions; and
(L) attorneys’ fees.13

As seen from this quoted language, it is a prerequisite of the notice itself that it be “written in the native language of the parents (unless it clearly is not feasible to do so) ….”

As discussed in the Facts section above, I have found for purposes of the instant Ruling, that Boston did not provide this requisite notice, translated into the French language, to Parents during the 2005-2006, 2006-2007, and 2007-2008 school years. It is not disputed that Boston had an obligation to do so.

Boston also did not provide a translated notice of the procedural safeguards to Parents for the 2008-2009 school year. Student turned 18 years old in August 2008 and therefore became his own educational decision-maker at that time, with Parents no longer having this authority.14 However, Massachusetts regulations provide that “parents will continue to receive written notices and information” even after a student turns 18 years old.15 This required Boston to continue to provide Parents with a translated notice of procedural safeguards for the 2008-2009 school year.16

In order to meet the above-quoted part D(ii) exception to the statute of limitations, Parents must satisfy two requirements: first, that Boston withheld information required to be provided under 20 USC § 1411 through § 1419; and second, that “ parent was prevented from requesting the [due process] hearing due to” Boston’s withholding the required information. Both prongs must be satisfied for the statute of limitations exception to apply.

In considering this exception to the statute of limitations, Courts have focused on the requisite notice of procedural safeguards, finding that failure to provide this notice implicates both requirements of this exception to the statute of limitations.17 This makes sense because the notice of procedural safeguards must, specifically, include information that advises Parents of their right to obtain a due process hearing and thereby contest a school district’s actions.18 See underlined language within the statutory requirement regarding the content of the notice, reproduced above.

Accordingly, I find that Boston’s failure to provide the translated notice of procedural safeguards during the 2005-2006, 2006-2007, 2007-2008, and 2008-2009 school years triggered the D(ii) exception to the IDEA’s statute of limitations and tolled the statute of limitations for claims relevant to those school years.

For these reasons, I am not prepared to dismiss any of Parents’ and Student’s claims on the basis of the statute of limitations.

Acceptance of IEPs

Boston correctly notes that the general and well-settled rule is that acceptance of an IEP precludes a Hearing Officer from considering its appropriateness.19 Thus, Parents cannot, on the one hand, accept an IEP, thereby indicating that they agree with the goals and objectives and the types and amounts of services reflected within that IEP, and then, at a later time after the IEP has been implemented, complain that the IEP was not reasonably calculated to provide Student with FAPE.20

It is not disputed that Parents and Student signed IEPs, with a box checked off indicating full acceptance of each IEP. However, in order for this to preclude later consideration of the appropriateness of an IEP, Parents (and Student when over the age of 18 years) must have provided a legally-sufficient acceptance of the IEP. I therefore turn to a consideration of what is minimally necessary in order that Parents’ or Student’s signature constitute acceptance of (or consent to) the IEPs so that they would be precluded from challenging the appropriateness of an IEP at a later date.

The term “accept” is utilized on Massachusetts IEP forms, is generally used in BSEA decisions in reference to a parent’s response to an IEP, and is used by the Massachusetts special education regulations with respect to a parent’s response to an IEP.21 The regulations do not define the term “accept”. However, in a number of places, the Massachusetts regulations use the term “consent” interchangeably with the term “accept” with respect to a parent’s response to an IEP.22 The regulations define the term “consent”.

For these reasons, I turn to the regulatory definition of “consent” to understand what is required in order for a parent or student to be bound by his or her signature accepting the IEP. The regulatory definition of “consent” provides, in relevant part, as follows:

Consent shall mean agreement by a parent who has been fully informed of all information relevant to the activity for which consent is sought, in his/her native language or other mode of communication, understands and agrees in writing to the carrying out of the activity, and understands that the granting of consent is voluntary and may be revoked at any time.23

Similarly, the federal IDEA regulations do not use the term “accept” but instead use the term “consent”. The First Circuit has referenced the IDEA’s definition of “consent” as applying to a parent’s consent to (or acceptance of) an IEP.24 Consent is defined by the IDEA regulations to mean that: (a) The parent has been fully informed of all information relevant to the activity for which consent is sought, in his or her native language, or other mode of communication;

(b) The parent understands and agrees in writing to the carrying out of the activity for which his or her consent is sought, and the consent describes that activity and lists the records (if any) that will be released and to whom; and

(c)(1) The parent understands that the granting of consent is voluntary on the part of the parent and may be revoked at anytime.

(2) If a parent revokes consent, that revocation is not retroactive (i.e., it does not negate an action that has occurred after the consent was given and before the consent was revoked).25

In the instant dispute, Parents signed IEPs that were not written in their native written language (French) for the school years 2005-2006, 2006-2007, and 2007-2008. This brings into question whether the regulatory definition of “consent” was satisfied for these IEPs because Parents were not “fully informed of all information relevant to the activity for which consent is sought, in [their] native language”, and therefore the state and federal definitions of consent may not have been satisfied.26 Drawing all reasonable inferences in Parents’ favor, I find that Boston’s failures precluded Parents from providing legally-effective acceptance of the IEPs.

I now turn to the IEP for the 2008-2009 school year. When the December 16, 2008 IEP Team meeting occurred to discuss this IEP, Student was 18 years old. Boston was required to develop transition services for him through the IEP process, and therefore Boston was required to invite Student to attend the Team meeting.27 Boston failed to invite Student to the Team meeting .

Neither Parents nor Student attended the meeting during which this IEP was discussed. “School districts have an affirmative duty to schedule an IEP meeting with the parents of a child with a disability at a “mutually agreed on time and place.”28 “Before it can hold an IEP meeting without a child’s parents, the school district must document phone calls, correspondence, and visits to the parents demonstrating attempts to reach a mutually agreed upon place and time for the meeting.”29 The facts, as recited above (see Facts section of ruling) and as considered in the light most favorable to Parents and Student, are that Boston failed to follow through with Parents and Student to find a mutually-convenient time for the meeting and failed to invite Student to the meeting; and that this caused Parents and Student not to attend the IEP Team meeting during which this IEP was discussed.

I find that these facts bring into question whether Boston complied with mandatory processes that are designed to provide Student with all information relevant to the IEP with the result that Student may not have been fully informed of all information relevant to the activity for which consent is sought, and therefore the state and federal definitions of consent may not have been satisfied.30 Drawing all reasonable inferences in Student’s favor, I find that Boston’s failures precluded Student from providing legally-effective acceptance of the IEP.31

For these reasons, I am not prepared to dismiss any of Parents’ and Student’s claims on the basis of the acceptance of these IEPs.32

ORDER

Boston’s Motion to Dismiss is DENIED .

By the Hearing Officer,

_________________

William Crane

Dated: April 7, 2011


1

Parents and Student were represented by attorney Michael D. Vhay of DLA Piper; Boston was represented by attorney Andrea Alves-Thomas of the Boston Office of Legal Advisor.


2

BSEA Rule 17B; 801 CMR 1.01(7)(g)3.


3

Judge v. City of Lowell , 160 F.3d 67, 72 (1 st Cir. 1998) (quoting Conley v.Gibson , 355 U.S. 41, 45-46 (1957)).


4

Caleron-Ortiz v. LaBoy-Alvarado , 300 F.3d 60, 63 (1 st Cir. 2002). See also Whitinsville Plaza, Inc. v. Kotseas , 378 Mass. 85, 89 (1979); Nader v. Citron , 372 Mass. 96, 98 (1977).


5

See White v. Peabody Construction Co., 386 Mass. 121, 127 (1982).


6

In my March 28, 2011 Ruling, I found that Parents did not receive a French-language copy of the notice of procedural safeguards with respect to the 2005-2006, but that Parents did receive a translated copy of the notice for the 2006-2007, 2007-2008, and 2008-2009 school years. In seeking reconsideration of that Ruling, Parents correctly pointed out that their amended hearing request clearly alleges that Parents did not receive a French-language copy of the notice of procedural safeguards with respect to all four school years. Pursuant to standards relevant to my consideration of a motion to dismiss (discussed in the text above), I must consider these allegations to be true for purposes of considering a motion to dismiss. These revised facts caused me to vacate my previous Ruling and to issue the instant Amended Ruling.


7

20 USC 1400 et seq .


8

MGL c. 71B.


9

20 USC § 1400(d)(1)(A). See also 20 USC 1412(a)(1)(A); Mr. I. ex rel. L.I. v. Maine School Admin. Dist. No. 55 , 480 F.3d 1, 12(1 st Cir. 2007) (referencing “broad purpose behind the IDEA: ‘to ensure that all children with disabilities have available to them a free and appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living’” citing to 20 USC § 1400(d)(1)(A)).


10

20 USC 1414(d)(1)(A)(i)(I)-(III); Honig v. Doe, 484 U.S. 305, 311-12 (1988) ; Rowley, 458 U.S. at 182.


11

20 USC § 1415(f)(3) (emphasis supplied).


12

See El Paso Independent School Dist. v. Richard R ., 567 F.Supp.2d 918, n.35(W.D.Tex. 2008) (“subchapter referred to here begins at 20 U.S.C. § 1411 and ends at 20 U.S.C. § 1419”).


13

20 USC § 1415(d)(2) (emphasis supplied).


14

See 603 CMR 28.07(5).


15

603 CMR 28.07(5).


16

In addition, I note that Boston did not provide Parents with a translated copy of the required notice advising Parents that educational decision-making transferred to Student on his 18 th birthday. Therefore, Parents may have been denied the opportunity to retain decision-making authority—for example, through their obtaining permission from Student to continue as his educational decision-maker or through their obtaining a guardianship order. See 603 CMR 28.07(5)(a) and (b). I also note that the IEP for the 2008-2009 IEP was signed on February 4, 2009, which is within the two year statute of limitations period since the Hearing Request was filed on January 26, 2011.


17

See J.L. ex rel. J.L. v. Ambridge Area School Dist ., 2009 WL 1119608, *13 (W.D.Pa. 2009) (finding that the school district’s failure to provide the requisite notice of procedural safeguards tolled the statute of limitations). See also School Dist. of Philadelphia v. Deborah A ., 2009WL 778321, *4 -5 (E.D.Pa. 2009) (focusing on the issue of whether the school district provided the requisite notice of procedural safeguards); El Paso Independent School Dist. v. Richard R .,567 F.Supp.2d 918, 945(W.D.Tex. 2008) (“When a local educational agency delivers a copy of IDEA procedural safeguards to parents, the statutes of limitations for IDEA violations commence without disturbance.”); Evan H., ex rel. Kosta H. v. Unionville-Chadds Ford School Dist ., 2008 WL 4791634, *7 (E.D.Pa. 2008) (“second exception to the limitation period provided by 20 U.S.C. § 1415(f)(3)(D) refers solely to the withholding of information regarding the procedural safeguards available to a parent under that subchapter”).


18

In the one decision that I am aware of that found that the exception to the statute of limitations applied and that did not focus on the notice of procedural safeguards, the notice that was not provided would have included information about parents’ procedural safeguards. See D.G. v. Somerset Hills School Dist ., 559 F.Supp.2d 484, 492(D.N.J. 2008) (statute of limitations tolled by failure to provide a notice required by the IDEA to explain why the school district refused to evaluate the student where the notice must state that the parents have procedural safeguards available to them, including filing a complaint and requesting an impartial due process hearing).


19

See Independent School District No. 432, Mahnomen School v. J.H ., 8 F.Supp.2d 1166, 28 IDELR 427 (D.Minn. 1998) (acceptance of IEP precluded Hearing Officer from considering its appropriateness); In Re: Yale and Upper Cape Cod Regional Technical School and Sandwich Public Schools , BSEA#06-0501 & #06-0808, 11 MSER 200 (2005) (without a showing of lack of notice of parental options and due process rights, lack of meaningful parental participation in the development of the IEP, or any other procedural impropriety, the BSEA does not revisit accepted expired IEPs); In Re: Quabbin , 11 MSER 146 (MA SEA 2005); In Re: Sharon Public Schools , 8 MSER 51, 67 (MA SEA 2002); In Re: Carver Public Schools , 7 MSER 167, 179 (MA SEA 2001).


20

In a recent decision, Judge Gertner noted the rule “that hearing officers are precluded from revisiting or re-opening accepted IEPs that have expired where parents participated in the development of the IEP” and then explained its rationale as follows: “The purpose of this rule is plain; deciding upon which goals and methods to include in any student’s IEP is not an exact science, and allowing parents to second guess IEP decisions after it has expired would only undermine the process of providing students with the educational services they need.” Doe ex rel. Doe v. Hampden-Wilbraham Regional School Dist ., 715 F.Supp.2d 185, 194-195 (D.Mass. 2010).


21

603 CMR 28.03(1)(c)1, 28.05(2)(b), 28.05(7)(a).


22

603 CMR 28.05(3)(b), 28.06(2)(d)(1), 28.08(1)(b) and (c).


23

603 CMR 28.02(4). The term “parent” is used within this definition, and “parent” typically refers to mother of father, but the Massachusetts regulatory definition of “parent” also states: “Legal authority of the parent shall transfer to the student when the student reaches 18 years of age.” 603 CMR 28.02(15). Accordingly, I understand the definition of “consent” to also apply to a student who has reached the age of 18 years.


24

See G.D. v. Westmoreland School District , 930 F.2d 942, 944 (1 st Cir. 1991) (referencing a predecessor regulatory definition of consent (34 C.F.R. § 300.500), which for purposes of the instant dispute, is the same as the current regulatory definition of consent (34 C.F.R. § 300.9). See also W.B. v. Matula , 67 F.3d. 484 (3 rd Cir. 1995) (court should inquire into the totality of the circumstances surrounding execution of an agreement waiving claims relevant to the IDEA, and should decline to enforce the agreement unless its execution was knowing and voluntary); Shawsheen Valley Regional Vocational Technical School Committee v. Commonwealth of Massachusetts Bureau of Special Education Appeals , 367 F.Supp.2d 44 (D.Mass. 2005) (court considered whether parents had sufficient knowledge or understanding of their rights to consent to IEP).


25

34 CFR §300.9(a).


26

See 34 CFR §300.9(a); 603 CMR 28.02(4).


27

See 34 CFR §300.321(b)(1).


28

34 CFR § 300.322(a)(2).


29

Drobnicki ex rel. Drobnicki v. Poway Unified School Dist ., 358 Fed.Appx. 788, 789 (9 th Cir. 2009) (citations and internal quotation marks omitted).


30

See 34 CFR §300.9(a); 603 CMR 28.02(4).


31

I also note that Student has been diagnosed with significant cognitive delays; and at the time of the IEP meeting, he was 18 years old and had not previously been asked to consent to an IEP. Notwithstanding these facts, Student is presumed competent to consent to an IEP, and neither party argued to the contrary. Nevertheless, these facts may be relevant to whether Student was able to obtain sufficient information on his own, without the benefit of an IEP Team meeting, in order to be able to provide legally-effective consent to an IEP.


32

Two BSEA rulings have reached the same conclusion in similar circumstances. See In Re: Quabbin , BSEA # 05-3115, 11 MSER 146 (August 16, 2005); In Re: Springfield , BSEA # 08-3378 (April 28, 2008).


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