CBDE Public Schools – BSEA # 10-6854



<br /> CBDE Pulic Schools – BSEA # 10-6854<br />

COMMONWEALTH OF MASSACHUSETTS

Division of Administrative Law Appeals

Bureau of Special Education Appeals

In Re: CBDE Public Schools

BSEA # 10-6854

RULING ON CBDE PUBLIC SCHOOLS’ MOTION TO DISMISS

Introduction

This Ruling addresses CBDE Public Schools’ (CBDE)1 motion to dismiss, which was filed with the Bureau of Special Education Appeals (BSEA) on January 18, 2011. On February 3, 2011, Parents filed their opposition. On February 14, 2011, I held a telephonic hearing on the motion.

Parents filed a hearing request that seeks a prospective residential placement, reimbursement of any past payments for residential services, and monetary damages.

CBDE takes the position that Parents’ substantive educational claims have been resolved so that no dispute remains. CBDE further argues that the damages claims should be dismissed for failure to state a claim upon which relief can be granted.

Parents take the position that the substantive educational dispute should remain open before the BSEA because there may be a disagreement regarding location of services. Parents also argue that the BSEA is the appropriate and necessary fact-finder regarding their damages claim.

For reasons explained below, I conclude that the substantive educational claims have been resolved and should be dismissed, and I conclude that the BSEA must make findings of fact regarding some, but not all, of Parents’ damages claims.

Motion to Dismiss Standard

Bureau of Special Education Appeals (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 Rule 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

Therefore, dismissal is inappropriate unless Parents, as the non-moving party, can prove no set of facts in support of their claims. The Hearing Officer must consider Parents’ claims based upon any theory of law and must consider the allegations in the hearing request to be true, as well as all reasonable inferences in the Parents’ favor.4

Parents’ Requests for Relief

As noted above, Parents’ hearing request seeks a prospective residential placement, reimbursement of any past payments for residential services, and monetary damages. More specifically, the hearing request includes the following three requests for relief.

First, the hearing request asks that CBDE be required to fund a therapeutic residential school for Student, “of the parent’s choosing, at the end of the CBAT Assessment so that there will be a seamless transition.”

Second, the hearing request seeks payment by CBDE of “any outstanding costs the parents were obligated to pay by Germaine Lawrence or other facility.”

Third, the hearing request seeks monetary damages for Parents, as well as for Student’s brothers and sisters for the alleged “rape, hostile educational environment, deliberate indifference, indecent assault and battery, intentional infliction of emotional distress, loss of consortium, and negligence” by individual, named defendants and the Town of CBDE.

Parents’ claim for monetary damages is made pursuant to Section 504 of the Rehabilitation Act of 1973 (Section 504), the Americans with Disabilities Act (ADA), 42 USC 1983 (Section 1983), Article CXIV of the Massachusetts Constitution, the Massachusetts Civil Rights Act, and Title IX of the Education Act Amendments of 1972 (20 USC 1681) (Title IX). Parents’ damages claim also asserts that CBDE “intentionally, and or negligently inflict[ed] emotional distress upon [Student] and her family and caused loss of consortium.”

With respect to their damages claim, Parents seek findings of fact, determination of violations of law, determination of what damages were suffered by Student, and, as a result of damages suffered by Student, what additional damages were suffered by Student’s parents and siblings.

Factual and Procedural Background

The following facts are taken from Parents’ hearing request where so noted, and these facts are assumed to be true only for purposes of the instant ruling. Additional facts included below are not disputed by the parties.

Parents’ hearing request alleges that in the fall of 2008, a CBDE employee raped Student, causing severe emotional distress and trauma. The hearing request further states that the CBDE employee subsequently pleaded guilty to criminal charges of statutory rape and related offenses. At the time of the alleged incident, Student was 14 years old and had not been determined eligible under special education or Section 504.

The hearing request alleges that, as a result of this incident and Student’s continuing “daily contact” with the alleged perpetrator (the alleged perpetrator continued working at the school until he was suspended by CBDE in March 2009), Student had “serious needs” including an “escalating patter [sic] of behavior and emotional outbursts” during the fall and winter of the 2008-2009 school year, and that Parents “begged for help” for their daughter. The hearing request takes the position that, on the basis of Student’s demonstrated emotional and behavioral needs at this time and Parents’ plea for help, CBDE should have identified Student as having a disability and needing special education or related services pursuant to its so-called “child find” responsibilities under federal special education law, but instead only referred Student to an anger management program with a male counselor, did not refer Student for evaluation (the first step in determining special education eligibility), and did not provide any additional support or services.

The hearing request alleges that if CBDE had provided a timely evaluation when Student demonstrated substantial emotional and behavioral difficulties during the fall and winter of the 2008-2009 school year, “such an evaluation would have revealed the rape and abuse [Student] suffered” and Student “likely would not have suffered the emotional breakdowns that … required the two hospitalizations.”

The hearing request alleges that Parents gave “actual notice” of the alleged rape incident to CBDE in March 2009 when Parents met with several CBDE staff and discussed what another student had told Parents, as well as their opinion that there was something “seriously wrong” with their daughter. CBDE promptly notified the police and suspended the CBDE employee who was the alleged perpetrator. Student continued to attend her CBDE educational program as a regular education student during this time period. The hearing request states that due to publicity in newspapers and the relatively small number of possible victims, it soon became apparent to staff and students in Student’s school that Student was the alleged rape victim.

The hearing request alleges that after the alleged rape became known within the school community, Student suffered “taunts and criticism” from other students who blamed her for the rape and arrest of the CBDE employee and that Student displayed the “obvious emotional outbursts and behavior [that] one would expect to see in a person raped by a person of trust, yet [who had been] forced to be in contact with that person daily in school.”

The hearing request alleges that CBDE evidenced “deliberate indifference” to Student’s “very serious needs” and “bad faith and gross misjudgment” by not evaluating Student or providing services or support. The hearing request takes the position that, consequently, Student’s emotional and behavioral outbursts “continued unabated”, with the result that she was referred to a Community Based Acute Treatment (CBAT) facility in January 2010. The hearing request states that the CBAT treating psychiatrist diagnosed Student as having post-traumatic stress disorder and a mood disorder, not otherwise specified, that Parents shared these findings with CBDE and again asked for assistance. Finally, the hearing request states that subsequently, Student was adjudicated a child in need of services and admitted to a psychiatric hospital in March 2010.

On March 23, 2010, CBDE sent Parents a Notice of Proposed School District Action (N1 form) indicating that it proposed to conduct an initial evaluation of Student for purposes of determining whether Student was eligible for special education and related services. CBDE received back the signed consent form from Parents on March 30, 2010.

On April 23, 2010, Parents filed with the BSEA their request for hearing. At that time, Student was receiving temporary residential services for purposes of evaluation at a second CBAT unit, through funding by the Massachusetts Department of Children and Families. In their hearing request, Parents sought a determination of special education eligibility and need for a residential, educational placement. Parents urged that CBDE provide a residential educational placement immediately so that Student would have continuous residential services.

On May 13, 2010, CBDE determined, for the first time, that Student was eligible to receive special education and related services. CBDE agreed to extend Student’s residential placement for purposes of evaluation. In July 2010, CBDE proposed an IEP calling for Student to be provided with a residential educational placement. Parents fully accepted this IEP and placement on July 14, 2010.

By agreement and request of both parties, the BSEA kept this case open to conduct conference calls to discuss Student’s continuing special education needs and how they should be met, and to address Parents’ damages claims. The parties had agreed to bifurcate the dispute and postpone consideration of the damages claim while seeking to resolve the substantive education issues. During this time period, the parties jointly referred Student for a neuropsychological evaluation. The evaluation recommended continued placement in a residential school, which recommendation has been adopted by the parties.

Discussion

It is not disputed that Student currently is an individual with a disability, falling within the purview of the federal Individuals with Disabilities Education Act (IDEA)5 and the state special education statute.6 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.”7 State special education law includes parallel requirements.8

In July 2010, Parents fully accepted CBDE’s proposed IEP calling for Student to be provided with a residential educational placement. This resolved Parents’ prospective special education claims. Parents’ hearing request also includes a potential claim for reimbursement of costs pertaining to prior residential services. However, during the February 14, 2011 motion hearing, Parents’ attorney stated that Parents did not then have any expenses for which they seek reimbursement. Parents have made no claims for compensatory educational services.

As a result, I find that all of the past and prospective special education claims appearing in Parents’ hearing request have been resolved. These claims will therefore be dismissed as no longer in dispute.

All that remains is Parents’ claim for monetary damages. This claim is based, in part, upon alleged violations of so-called “child find” requirements under the IDEA and alleged violations of Section 504. CBDE takes the position that Parents have failed to state a claim under either statute. I disagree for the following reasons.

The IDEA imposes the following “child find” responsibility on CBDE:

All children with disabilities residing in the State, including children with disabilities who are homeless children or are wards of the State and children with disabilities attending private schools, regardless of the severity of their disabilities, and who are in need of special education and related services, are identified, located, and evaluated and a practical method is developed and implemented to determine which children with disabilities are currently receiving needed special education and related services.9

The regulations under the IDEA essentially mirror the “child find” statutory requirement, with the addition of the following language:

Other children in child find . Child find also must include–
(1) Children who are suspected of being a child with a disability under §300.8 and in need of special education, even though they are advancing from grade to grade; and

(2) Highly mobile children, including migrant children .10

Pursuant to this statutory and regulatory “child find” obligation, CBDE “ must take steps to identify children who may qualify as disabled, evaluate each such child to determine his or her eligibility for statutory benefits, and develop a customized IEP designed to ensure that the child receives a level of educational benefits commensurate with a FAPE.”11 O nce a parent requests (or indicates a need for) special education services, even if the parent’s request or indication of need is inartfully stated, or once the school district has sufficient information regarding a student’s need for special education services, even if the student is only “suspected” of having a disability that may require services, the school district may then have a responsibility to evaluate the student because the school district has a general responsibility under child find to identify and evaluate all potentially-eligible students who reside within that school district’s jurisdiction.12

Parents’ hearing request includes allegations that beginning in the fall and winter of 2008, CBDE received a request for assistance from Parents and had sufficient information about Student’s difficulties in school to trigger its responsibility to evaluate Student under “child find” and determine her eligibility for special education services. CBDE did not evaluate and determine Student’s eligibility until the spring of 2010. I therefore find that Parents have alleged sufficient facts to make out a claim for relief under the IDEA’s “child find” protections.

Section 504 provides, in relevant part, as follows:

No otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefit of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . . .13

The Supreme Court has noted that the “ultimate question is the extent to which a grantee is required to make reasonable modifications in its programs for the needs of the handicapped.”14 For example, CBDE may have been required to comply with Section 504 by providing Student with a reasonable accommodation so that notwithstanding Student’s disabilities, she would have had the opportunity to have meaningful access to her public school education without the interruptions of her hospitalizations. Where Student is seeking to rectify alleged past discrimination, a showing of “deliberate indifference” may be required under Section 504.15

Parents’ hearing request includes allegations that beginning in the fall and winter of 2008, CBDE knew or should have known that Student was entitled to a reasonable accommodation under Section 504 and that without such an accommodation, Student was not able to participate in, and have access to, her public school education. Parents also allege that CBDE demonstrated deliberate indifference in their failure to identify and address their daughter’s educational needs under Section 504, notwithstanding their knowledge of those needs. Parents’ hearing request therefore includes sufficient allegations to make out a claim for relief under Section 504.

Parents do not seek compensatory relief for alleged past violations of the IDEA and Section 504, but rather rely on these claims as a basis for BSEA findings and determinations relevant to Parents’ claim for monetary damages. I therefore consider the BSEA’s responsibility regarding Parents’ damages claim.

There is agreement among the parties that the BSEA does not have the authority to award monetary damages, and there is ample support for this conclusion.16 Instead, the Parents ask that certain findings and determinations be made for the purpose of assisting a court to determine in a subsequent judicial proceeding what, if any, monetary damages are to be awarded. Specifically, Parents seek findings of fact, determination of violations of law, determination of what damages were suffered by Student, and, as a result of damages suffered by Student, what additional damages were suffered by Student’s parents and siblings.

The IDEA requires, as a general rule, that exhaustion of administrative remedies occur prior to seeking judicial relief. The statutory language provides, in relevant part, as follows:

Nothing in this title [20 USCS §§ 1400 et seq.] shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, the Americans with Disabilities Act of 1990, title V of the Rehabilitation Act of 1973 [29 USCS §§ 790 et seq.], or other Federal laws protecting the rights of children with disabilities, except that before the filing of a civil action under such laws seeking relief that is also available under this part [20 USC §§ 1411 et seq.], the procedures [for the impartial due process hearing] shall be exhausted to the same extent as would be required had the action been brought under this part [20 USC §§ 1411 et seq.].17

There are exceptions to the IDEA exhaustion requirement (such as futility), but CBDE has not argued that they apply in the instant dispute, and I therefore do not consider them.18 In Massachusetts, the IDEA administrative process that must be exhausted is the due process proceeding before the BSEA.

In Frazier v. Fairhaven School Committee , the First Circuit addressed for the first time the question of whether a plaintiff who seeks only money damages is required to exhaust administrative remedies prior to instituting a Section 1983 claim predicated on a violation of the IDEA. The Court held that plaintiffs may not proceed with their Section 1983 claim without first having exhausted the BSEA’s administrative process where plaintiffs had alleged that school officials had violated the student’s rights under the IDEA. The court reached this conclusion even though parents sought no relief other than monetary damages and the BSEA administrative process could not award monetary damages.19

Two federal district courts in Massachusetts have interpreted and extended somewhat the Frazier decision. In the first of these cases, Bowden ex rel. Bowden , Judge Woodlock required exhaustion of the administrative process regarding Section 504 and ADA claims where the sole requested relief was money damages, concluding that “any aspect of the school’s treatment that interferes with the provision of a free, appropriate public education is within the scope of the IDEA’s administrative procedures.”20 Judge Woodlock reasoned that “[s]ince the ADA and Rehabilitation Act claims allege that defendants’ physical and psychological abuse interfered with their children’s right to an equal education, they are charges for which the IDEA procedures could have provided relief .”21 Judge Woodlock found that Section 504 and ADA claims of denial of an equal education were “precisely” the rights protected under the IDEA to a free, appropriate public education, and therefore student’s 504 and ADA claims required exhaustion under the IDEA even though (1) the underlying allegations involved physical abuse, (2) the parents had no current complaints about the school district’s educational services, and (3) the parents had made no claims under the IDEA.22 Using a similar analysis, Judge Zobel in City of Boston v. Bureau of Special Educ. Appeals, required exhaustion regarding a Section 504 damages claim by a student not determined eligible to receive services under the IDEA and not seeking any relief under the IDEA.23 Other Federal courts have utilized somewhat different standards.24

In the instant dispute, Parents have asserted claims under the IDEA and Section 504 and, as discussed above, those claims are sufficient to survive CBDE’s motion to dismiss. Parents have fully consented to Student’s current IEP with the result that their prospective claims are being dismissed, and they do not seek any compensatory educational relief. Instead, Parents seek monetary damages based, in part, on their asserted IDEA and Section 504 claims for alleged failure to provide Student with appropriate educational services and supports. Within this context, I simply find it not possible to distinguish the analysis in Frazier , Bowden , and City of Boston , discussed above, where in each case the parents were required to return to the BSEA for fact finding on their damages claims. I therefore am constrained to find that I must conduct an administrative hearing and make findings of fact regarding Parents’ damages claims under the IDEA and Section 504.

Parents take the position that the BSEA administrative process should include not only fact finding but also a determination of violations of law . I am prepared to determine whether CBDE violated Student’s rights under “child find” provisions of the IDEA (including any other denial of FAPE) and Student’s rights under Section 504 because these are areas normally addressed by a BSEA Hearing Officer and because any finding of educational harm by the BSEA would presumably need to be tied to a violation of Student’s rights under the IDEA or Section 504.25

However, Parents would have the BSEA go further. They seek to extend the IDEA exhaustion requirements (and BSEA’s fact-finding role) to Students’ remaining claims, which are Section 1983, Article CXIV of the Massachusetts Constitution, the Massachusetts Civil Rights Act, Title IX, assault and battery, intentional infliction of emotional distress, and negligence.

I begin the analysis with the IDEA exhaustion statutory language, quoted above, which explicitly references when the exhaustion requirement applies, that is “ before the filing of a civil action under such laws ”. 20 USC § 1415 (l) (emphasis supplied). The phrase “such laws” refers back to “the Constitution, the Americans with Disabilities Act of 1990, title V of the Rehabilitation Act of 1973, or other Federal laws protecting the rights of children with disabilities.” 20 USC § 1415 (l).

This “language of the IDEA restricts the exhaustion to requirement to claims arising under federal law,” thereby making it unnecessary for Parents to exhaust administrative remedies for purposes of their state law claims.26 Also, this statutory language applies only when a party is “ seeking relief that is also available under this part” of the IDEA, and “tort-like money damages, as opposed to compensatory equitable relief, are not available under IDEA.”27

Only two of Parents’ remaining claims pertain to a federal law. The first, which is Section 1983, is not, itself, a law “protecting the rights of children with disabilities” but instead is being utilized by Parents to enforce other federal laws. Therefore, Section 1983 need not be considered by itself, but rather only as it is utilized in conjunction with Parents’ other federal claims.28

The second federal law relied on by Parents, which is Title IX, provides that no person shall, on the basis of sex, be subjected to discrimination under any education program or activity receiving federal financial assistance.29 Title IX Is not specifically referenced within the above-quoted IDEA exhaustion requirement; and because Title IX is not intended to protect the rights of children with disabilities to any greater or lesser extent than it is intended to protect the rights of children without disabilities, it falls outside the exhaustion requirement’s general reference to “other Federal laws protecting the rights of children with disabilities”. 20 USC § 1415 (l). Accordingly, I find that Parents’ Title IX claim does not require exhaustion of BSEA proceedings.30

Finally, I consider the need to determine facts and violations of law regarding the ADA. The above analysis indicates that ADA damages claims are subject to IDEA exhaustion requirements. However, I decline to separately find facts under the ADA or to separately determine whether there was a violation of the ADA because there is unlikely any difference between Parents’ Section 504 claim and their ADA claim for purposes of the instant dispute.31 I also note that, in contrast to Section 504, there is no express grant of jurisdiction to a BSEA Hearing Officer to address ADA claims.32 I therefore decline to make factual findings or determinations of liability with respect to Parents’ ADA claims beyond my findings and determinations under Section 504.

In sum, Parents must exhaust BSEA administrative procedures with respect to their IDEA and Section 504 damages claims but not with respect to their other claims.

Parents make one more argument to extend BSEA fact finding to their claims under Title IX and state law. Parents take the position that even if these claims need not be exhausted through the BSEA administrative procedure, fact finding regarding Title IX and state law would not substantially extend the scope of the Hearing Officer’s fact finding under the IDEA and Section 504, and that principles of judicial and administrative efficiency and economy argue in favor of the BSEA’s developing a complete factual record regarding the full scope of Parents’ damages claim.

For purposes of this discussion, I will first consider what fact finding will likely occur pursuant to Parents’ IDEA and Section 504 claims, and will then consider the implications of extending this fact finding to Parents’ remaining claims.

In the instant dispute, it will be necessary to find facts sufficient to determine whether Student’s special education or Section 504 rights were violated. To the extent that any of these rights was violated, it will be necessary to find facts sufficient to determine the nature and extent of any educational harm that inured to Student as a result of the violations. I understand fact finding regarding educational harm to Student to be comparable to the fact finding that would occur if this were a compensatory education dispute and the BSEA Hearing Officer were required to determine facts sufficient to make “an informed and reasonable exercise of discretion regarding what services [Student] needs to elevate him to the position he would have occupied absent the school district’s failures.”33

A principal justification for requiring exhaustion of BSEA’s administrative processes is to provide assistance to the courts through the specialized knowledge and expertise of the BSEA Hearing Officers.34 The BSEA’s sole statutory and regulatory purpose is to resolve special education disputes.35 The scope of special education is broad enough to include social, emotional and behavioral considerations, but only to the extent that they impact a student’s education,36 with the result that the expertise and experience of the BSEA Hearing Officers encompasses only what implicates a student’s right to special education.37 In the instant dispute, fact finding related to alleged IDEA or Section 504 violations and any consequent educational harm falls squarely within the Hearing Officer’s role and expertise.

In contrast, fact finding with respect to those legal claims that are not subject to IDEA exhaustion —that is, Parents’ state law (including tort claims) and Title IX claims—would require the Hearing Officer, for example, to hear evidence and make factual findings under tort law regarding pain and suffering, and proximate cause. This would place the Hearing Officer outside of his or her area of experience and expertise. In the words of Judge Woodlock, the BSEA administrative procedure “would provide little benefit because it can neither provide appropriate relief nor does it offer any particular expertise.”38 Courts, rather than the BSEA, “are the traditional and more expert arbiters of questions of tort and constitutional law.”39

The context of the instant dispute further demonstrates how fact finding proposed by Parents would take the Hearing Officer beyond the role of a BSEA Hearing Officer in adjudicating special education disputes. Parents make clear their intent that fact finding include the “emotional trauma of the rape” itself. See Parents’ closing argument, p.12. Yet, the alleged rape incident preceded the claims that Parents have made under the IDEA’s “child find” protections, as well as any protections Student may have under Section 504. In addition, Parents’ damages claim includes alleged harm to Student’s brothers and sisters through loss of consortium, which is well beyond the scope of the mandatory fact finding by the BSEA.

Finally, I note that administrative fact finding regarding Parents’ additional claims may raise concerns as to whether the parties are being denied the opportunity for the application and protection of the formal rules of evidence and the opportunity for a jury trial that would normally occur as part of judicial fact finding but that are not available within a BSEA proceeding.40

For these reasons, I will limit fact finding to what is necessary to determine whether Student’s rights under the IDEA or Section 504 have been violated, and, if so, the nature and extent of any consequent educational harm. The scope of fact finding will likely be comparable to what would occur in a compensatory claim (as explained in the text accompanying footnote 33, above) and will be determined more specifically by the Hearing Officer after input from the parties (as explained in the Order, immediately below).41

ORDER

CBDE’s Motion to Dismiss is ALLOWED with respect to all substantive educational claims. Parents’ substantive education claims are DISMISSED without prejudice.

CBDE’s Motion to Dismiss is DENIED with respect to fact finding required for purposes of exhaustion of Parents’ IDEA and Section 504 claims for damages, and is ALLOWED with respect to all other fact finding.

No later than three weeks from the date of this Ruling, Parents shall file a statement delineating each factual issue that Parents propose be addressed by the Hearing Officer’s fact finding. Within two weeks of Parents’ filing this statement, CBDE may file any objection to Parents’ statement. The Hearing Officer will then enter an order describing the factual issues to be addressed at hearing.

This matter will proceed as a Hearing Officer-initiated conference call at 3:00 PM on March 2, 2011 to discuss any issues related to the above-referenced determinations and fact finding of the BSEA and to schedule evidentiary hearing dates for this purpose.

By the Hearing Officer,

_________________

William Crane

Dated: February 24, 2011


1

CBDE is a pseudonym chosen by the Hearing Officer to protect the privacy of the Student.


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

See Caleron-Ortiz v. LaBoy-Alvarado , 300 F.3d 60 (1 st Cir. 2002) (“accepting as true all well-pleaded factual averments and indulging all reasonable inferences in the plaintiff’s favor” a motion to dismiss will be denied if recovery can be justified under any applicable legal theory). See also Whitinsville Plaza, Inc. v. Kotseas , 378 Mass. 85, 89 (1979); Nader v. Citron , 372 Mass. 96, 98 (1977).


5

20 USC § 1400 et seq .


6

MGL c. 71B.


7

20 USC § 1400(d)(1)(A). See also 20 USC 1412(a)(1)(A).


8

MGL c. 71B, ss. 2, 3.


9

20 USC § 1412(a)(3).


10

34 CFR § 300.111(a)(1)(i) and (c) (effective October 13, 2006).


11

C.G. ex rel. A.S. v. Five Town Community School Dist ., 513 F.3d 279, 285 (1 st Cir. 2008) (citing to 20 U.S.C. §§ 1412(a)(3)-(4), 1414(a)-(b)).


12

See, e.g., Board of Educ. of Fayette County, Ky. v. L.M. , 478 F.3d 307 (6 th Cir. 2007) (“Even children who are only suspected of having a disability, although they are progressing from grade to grade, are protected by [child find] requirement.”); Robertson County School System v. King , 99 F.3d 1139 (6 th Cir. 1996) (request for assessment is implied when parent informs school district that student may have special needs, thereby requiring school district to identify and evaluate student); W.B. v. Matula, 67 F.3d 484, 501 (3d Cir.1995) (child find requires school district to identify and evaluate children “who are suspected of having a qualifying disability” within a reasonable time after they are “on notice of behavior that is likely to indicate a disability”); C.G. v. Five Town Community School Dist. , 2007 WL 494994 ( D.Me. 2007) (child find duty triggered when school district had reason to suspect that student has a disability and that special education services may be needed to address that disability) (see also cases cited therein), report and recommendation adopted 2007 WL 1051605 (2007), aff’d 513 F.3d 279 (1st Cir. 2008) ; Scott v. District of Columbia , 2006 WL 1102839 ( D.D.C. 2006) (need for an evaluation to determine special education eligibility was evident throughout the school year, with the result that school district should have sought to evaluate student under child find); Nesbit v. District of Columbia , CA No. 01-2429, 2003 U.S. Dist. LEXIS 26306 (D.D.C. 2003) (school district was “responsible for [Student’s] special education needs as soon as [Parent] inquired about evaluation”).


13

29 U.S.C.A. § 794(a). It is not disputed that CBDE receives federal financial assistance.


14

Alexander v. Choate , 469 US 287, 299 n. 19 (1985) .


15

See Nieves-Marquez v. Puerto Rico , 353 F.3d 108, 125 n.17 (1 st Cir. 2003)(“it may be that § 504 claims require some showing of deliberate indifference not required by IDEA”).


16

See In Re: Boston Pub. Schs., 13 Mass. Spec. Educ. Rep. 51 (BSEA 06-6508) (2007); In Re: Natick Pub. Schs., 6 Mass. Spec. Educ. Rep. 48 (BSEA 99-3852) (2000). See also Frazier v. Fairhaven School Committee, 276 F.3d 52, 63 (1 st Cir. 2002) (noting that the BSEA does not offer monetary damages as a form of relief under the IDEA).


17

20 USC § 1415 (l). See also the similar language found within the implementing regulations. 34 CFR §300.516(e).


18

See Rose v. Yeaw, 214 F.3d 206, 210-211 (1 st Cir. 2000)


19

Frazier v. Fairhaven School Committee, 276 F.3d 52, 6\9-70 (1 st Cir. 2002).


20

Bowden ex rel. Bowden , 2002 WL 472293 at *4 (D.Mass. 2002) (footnote omitted) .


21

Id . (footnote omitted).


22

Id .


23

City of Boston v. Bureau of Special Educ. Appeals , 2008 WL 2066989, *4 ( D.Mass. 2008) (citations and internal quotation marks omitted).


24

E.g., McCormick v. Waukegan School Dist. No. 60 , 374 F.3d 564, 569 (7 th Cir. 2004 ( exhaustion not necessary because IDEA does not provide a remedy for his alleged injuries, which are non-educational in nature) ; Padilla ex rel. Padilla v. Sch. Dist. No. 1 in City and County of Denver, Colo., 233 F.3d 1268, 1274 (10th Cir. 2000) (“dispositive question generally is whether the plaintiff has alleged injuries that could be redressed to any degree by the IDEA’s administrative procedures and remedies”); Witte v. Clark County Sch. Dist., 197 F.3d 1271, 1275-76 (9th Cir.1999) (holding exhaustion to be unnecessary because of the lack of possible remedies under IDEA’s administrative processes that could address the plaintiff’s damages as a result of physical abuse and injuries); Campbell v. Nye County Sch. Dist., No. 94-15747, 1995 WL 597706, at *2 (9 th Cir. 1995) (finding that § 1983 claim for compensatory damages based upon beatings of children by school personnel could not have been brought under the IDEA where plaintiffs did not claim beatings were disciplinary in nature and beatings could not have been discipline under Nevada law prohibiting corporal punishment in schools); S.S. v. E. Ky. Univ., 307 F.Supp.2d 853, 858 (D.Ky. 2004), vacated on other grounds, 125 Fed. Appx. 644 (6th Cir. 2005) ( “physical assault or sexual abuse of a student by a school staff member or administrator would fall outside of the scope of the IDEA since they are not related to the way that a school provides education ”).


25

See 603 CMR 28.08(3)(a).


26

R.K., ex rel. T.K. v. Hayward Unified School Dist. , 2007 WL 2778702, n. 4 ( N.D.Cal. 2007). See also M.J. ex rel. G.J. v. Clovis Unif. Sch. Dist., 2007 WL 1033444, *12 (E.D.Cal. April 3, 2007) (“This provision [of the IDEA requiring exhaustion] specifically concerns ‘rights, procedures, and remedies available under the Constitution, the Americans with Disabilities Act of 1990 [42 U.S.C.A. § 12101 et seq.], title V of the Rehabilitation Act of 1973 [29 U.S.C.A. § 791 et seq.], or other Federal laws protecting the rights of children with disabilities….’ It does not address state laws that might protect children with disabilities. CUSD points to no other authority that requires exhaustion of administrative remedies prior to the filing of Plaintiff’s [state law] claim.”)


27

Nieves-Marquez v. Commonwealth of Puerto Rico , 353 F.3d 108 (1 st Cir. 2003 ). See also Sellers v. School Board, 141 F.3d 524, 527 (4 th Cir. 1998) (“Tort-like damages are simply inconsistent with IDEA’s statutory scheme”); Bowden , 2002 WL 472293 at *5 (“IDEA exhaustion provision does not apply because the tort … claims are not claims for which relief is available in any sense under the IDEA”); In Re: Milton Pub. Schs., 14 Mass. Spec. Educ. Rep. 18 (BSEA 08-2284) (2008) (IDEA’s requirement of exhaustion of the BSEA’s administrative remedies does not apply to a tort claim under MGL c. 76, s. 16, which provides a tort remedy for improper exclusion from school).


28

See Frazier, 276 F.3d at 69-70 .


29

Education Amendments of 1972, § 901; 20 USC § 1681.


30

See Bowden , 2002 WL 472293 at *3 (explaining that in the First Circuit’s Frazier decision, the alleged violations of Title IX, based on sexual harassment and retaliation, were not related to a free, appropriate public education and therefore the First Circuit did not subject the Title IX claims to IDEA exhaustion requirements); In Re: Bourne Pub. Schs., 8 Mass. Spec. Educ. Rep. 297 (BSEA 02-3804) (2002) (finding that exhaustion not required relative to a Title IX claim). But see M.M.R.-Z. v. Commonwealth of Puerto Rico , 2008 WL 2285185, *4 (1 st Cir. 2008) where the Court stated in dicta without analysis or amplification: “(arguably) Title IX as applied to a disabled child” falls within the phrase “other Federal laws protecting the rights of children with disabilities” as found within 20 USC § 1415 (l).


31

The case law construing the Section 504 and the ADA is essentially interchangeable. The difference between the statutes lies in their applicability since Section 504 (but not the ADA) requires receipt of federal financial assistance. See Calero-Cerezo v. United States, 355 F.3d 6, 19 (1 st Cir. 2004). See also Bowden ex rel. Bowden , 2002 WL 472293 at *6 (D.Mass. 2002) ( noting that the ADA and the Rehabilitation Act provide largely the same protections and use the same standards, the court did not distinguish between claims under these statutes).


32

See 603 CMR28.08(3)(a) (limiting the BSEA’s jurisdiction to claims under special education law and Section 504).


33

Reid v. District of Columbia, 401 F.3d 516, 527 (D.C. Cir. 2005). See also C.G. ex rel. A.S. v. Five Town Community School Dist ., 513 F.3d 279, 290 (1 st Cir. 2008) (“Compensatory education is a surrogate for the warranted education that a disabled child may have missed during periods when his IEP was so inappropriate that he was effectively denied a FAPE.”); Draper v. Atlanta Independent School System , 518 F.3d 1275, 1289-1290 (11 th Cir. 2008) (“record supports the conclusion of the district court that Draper’s award is reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place,” citing to Reid ); Board of Educ. of Fayette County, Ky. v. L.M . , 478 F.3d 307, 316 (6 th Cir. 2007) (citing to Reid ).


34

See Frazier , 276 F.3d at 60-61 (experience and expertise of the educational professionals participating in the IDEA administrative process are particularly beneficial to the courts); Rose, 214 F.3d at 210 (exhaustion requirement is designed to “enable[ ] the agency to … apply its expertise to the problem”).


35

See 20 U.S.C. § 1415(b)(6); MGL c. 71B, s. 3; 603 CMR 28.08(3)(a).


36

IDEA entitles qualifying students to services that “target ‘ all of [their] special needs,’ whether they be academic, physical, emotional, or social.” Lenn v. Portland Sch. Comm., 998 F.2d 1083, 1089 (1st Cir.1993) (quoting Burlington, 736 F.2d at 788). But, the IDEA need not address “problems truly ‘distinct’ from learning problems.” Gonzalez v. P.R. Dep’t of Educ., 254 F.3d 350, 352 (1 st Cir.2001); see also Rome Sch. Comm. v. Mrs. B., 247 F.3d 29, 33 n.3 (1 st Cir.2001) (noting that, in determining adequacy of IEP for emotionally disturbed boy, “[t]he question is whether [his] behavioral disturbances interfered with the child’s ability to learn”).


37

See, e.g., Bowden , 2002 WL 472293 at *5 (“where the ultimate question is whether a disabled child was denied his/her right to an equal education—as opposed to whether a tort occurred or whether the constitutional right to bodily integrity was violated—the experience and expertise of the educational professionals participating in the IDEA process are particularly beneficial to the courts”).


38

Bowden , 2002 WL 472293 at *5.


39

Id .


40

See BSEA Hearing Rule X C (“Hearing Officer shall not be bound by the rules of evidence applicable to courts”).


41

In a previous dispute, I took a more expansive view of the appropriate scope of fact finding for purposes of exhaustion in a damages dispute. See In Re: Mashpee , 14 Mass. Spec. Educ. Rep. 143 (BSEA 08-0998) (2008). However, upon further reflection and with the assistance of the parties in the instant dispute and for the reasons explained in the instant Ruling, I find that fact finding more closely limited to the role and expertise of a BSEA Hearing Officer is appropriate. I am aware of nothing within First Circuit case law that requires a broader scope of fact finding, and I note consistency with what the First Circuit found to be appropriate fact finding when it reviewed In Re: Brockton Pub. Schs ., 6 Mass. Spec. Educ. Rep. 17, 23 (BSEA 00-2572) (2000). The Court concluded that “the hearing officer … had compiled the requisite findings of fact and, thus, a court of competent jurisdiction could rely upon the administrative record developed by the hearing officer to adjudicate the ensuing section 1983 claim.” Frazier , 276 F.3d at 64 (footnote omitted). In Brockton , the BSEA Hearing Officer’s fact finding was limited to what was necessary to determine whether the IDEA had been violated and any relief under the IDEA.


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