James v. Boston Public Schools – BSEA # 07-5365



<br /> James v. Boston Public Schools – BSEA # 07-5365<br />

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

In Re: James1 v. Boston Public Schools

BSEA # 07-5365

DECISION

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

A hearing was held on June 12, 2007 in Malden, MA before William Crane, Hearing Officer. Those present for all or part of the proceedings were:

Student’s Mother

Peggy Soto Director, East Zone Family Resource Office, Boston Pub. Sch.

Elvira Manning Transition Coordinator, Mass. Department of Mental Health Elizabeth Kurlan Senior Program Director of Litigation, Boston Public Schools

Andrea Alves Thomas Attorney for Boston Public Schools

Katie Riordan Legal Intern, Boston Public Schools

Tracy Coogan Legal Intern, Boston Public Schools

Thomas Mela Attorney for Student

Alexandra Peredo-Carrion Attorney for Student

Kristin Brandt Legal Intern for Student

Christina Greenberg Legal Intern for Student

Astrid Brown Interpreter

The official record of the hearing consists of documents submitted by the Parent and marked as exhibits P-1 through P-15; documents submitted by the Boston Public Schools (Boston) and marked as exhibits S-1 through S-26; and approximately one day of recorded oral testimony and argument. The record also includes Boston’s Motion for Summary Judgment and Student’s opposition, as well as supplemental memoranda of law. As agreed by the parties, oral closing arguments were made on June 13, 2007, and the record closed on that date.

INTRODUCTION

This decision addresses two aspects of a larger dispute. The two questions to be addressed at this time are the contours of the applicable statute of limitations and Boston’s obligations, if any, to provide educational services prior to its receipt of appropriate immunization documentation.

For the reasons explained below, I have found in favor of Boston on both issues.

This case has been scheduled for further evidentiary hearing on July 31, 2007 and August 1 and 2, 2007 with respect to all remaining issues, which include compensatory claims for Boston’s alleged violations occurring on or after March 22, 2005 and any prospective claims.

ISSUES

The issues to be decided in this case are the following:

1. Are Student’s claims prior to March 22, 2005 barred by the statute of limitations (the Hearing Request was filed on March 22, 2007); and if not, how far back in time may Student’s claims be considered?

2. Is Boston exempt from any responsibility to have provided educational services to Student prior to October 30, 2006, when Boston first received Student’s medical certificate of appropriate immunizations?

PROCEDURAL HISTORY

On March 22, 2007, Student’s attorney filed a Hearing Request with the Bureau of Special Education Appeals (BSEA) alleging failure of Boston to provide appropriate special education services from October 2003 through the present.

On May 29, 2007, Boston’s attorney filed a Motion for Summary Judgment on the basis that Student’s claims, in part, were precluded by a two-year statute of limitations and because Boston had no obligation to enroll Student prior to October 30, 2006 when Student’s immunizations document was first delivered to Boston. Student filed his opposition on June 5, 2007, arguing, in part, that there remained disputes regarding material issues of fact and that therefore summary judgment was not appropriate.

This matter was scheduled for an evidentiary hearing on June 12, 2007 to allow factual evidence for the purpose of resolving the two issues raised in Boston’s Motion for Summary Judgment . On June 8, 2007, this case was re-assigned to the present Hearing Officer.

FACTUAL BACKGROUND

Student, who is twenty-two years old, lives with his mother (Parent) in Boston. Student has been diagnosed with moderate mental retardation and profound developmental delay. Testimony of Parent; exhibits P-5, P-10, S-4, S-16.

Student was born in the Dominican Republic. At approximately 8 months of age, his father died. Student’s mother enrolled Student in the regular education schools in the Dominican Republic where Student also received speech therapy. He learned to speak at age five. Testimony of Parent.

Student attended regular education schools in the Dominican Republic until he was nine years old. Parent was then told that her son could no longer attend regular education schools and could only attend a special education school for children with disabilities. Student was put on a waiting list for a special school, and periodically Parent would inquire about her son’s moving off the waiting list, but Parent was never notified that her son could attend a special education school. Parent did not have money to send her son to a private school. As a result, Student did not attend school in the Dominican Republic once he was removed from the regular education school at nine years old. Testimony of Parent.

Parent came to the United States in 2001. On September 28, 2003, Mother brought her four children – Student and Student’s three siblings – to the United States to live with her. They lived together in Boston. Testimony of Parent.

In August 2003, prior to bringing her children to the United States, Parent obtained immunizations for her children. The immunization documents were sent to immigration officials in the Dominican Republic. The immigration officials returned to her the immunization documents for Student’s siblings but not for Student. Testimony of Parent.

In October 2003, Parent went to the West Zone Resource Office (located in Hyde Park) of the Boston Public Schools for the purpose of enrolling her four children in the public schools. Parent did not then and does not now understand English. Her first language is Spanish. Parent spoke with a Boston employee who spoke Spanish. Parent explained to the Boston employee that she was there to enroll her four children in the Boston Public Schools. She showed the Boston employee the Social Security cards and passports for her four children. Testimony of Parent.

Parent explained to the Boston employee that Student was an eighteen-year-old who did not know how to read or write and who had mental retardation. Parent recalled that the Boston employee said that Student could not be enrolled in the Boston Public Schools. Parent further recalled that the Boston employee did not explain any reasons why Student could not be enrolled. Parent’s recollection is that nothing further was discussed between Parent and the Boston employee regarding Student. From that conversation until 2006, Parent believed that Student could not be enrolled in the Boston Public Schools, and she made no further attempt to enroll Student until 2006. Testimony of Parent.

Parent testified that when she went to Boston’s West Zone Resource Office in October 2003, she gave to the Boston employee the immunization documents for Student’s three siblings, and the employee instructed Parent to obtain updated immunizations for these children. Parent recalled that no written information was provided to her at this time by the Boston employee with respect to any of her four children, including Student. Testimony of Parent.

In October 2003, it was (and has remained since then) the practice of the Boston Public Schools that when a parent comes to register his/her son/daughter at the West Zone (or other) family resource office, the Boston employee reviews with the parent whether there is the necessary documentation for enrollment. Boston’s practice was (and is) that no student may be enrolled unless the student has documentation of all appropriate immunizations. When a student does not have the correct documentation, Boston’s practice was (and is) to give the parent a list of free and low cost clinics and health centers (and their phone numbers) where a parent may obtain a test to determine what immunizations are needed and then to obtain the needed immunizations. In Boston, immunizations are provided at no cost to the parent. Testimony of Soto.2

In addition, at the time that a parent seeks enrollment at a family resource office, it was in October 2003 (and has remained) Boston’s practice to provide the parent with written information explaining the need to obtain immunizations, as well as other prerequisites to enrollment in the Boston Public Schools. The form was (and is) available in Spanish. Testimony of Soto; exhibit S-6.

In October 2003, it was (and has remained) Boston’s practice that if a parent comes to a family resource center but does not have all of the appropriate documents for registration, Boston does not enroll the student. Instead, the Boston employee explains to the parent what more must be done to enroll the child, and the above-described written information is provided to the parent. Other than maintaining a log of all persons visiting the resource office for purposes of predicting future staffing needs, Boston does not keep track of parents who visit the resource office and does not call back or otherwise inquire with a parent at a later date regarding immunizations or enrollment. The responsibility remains entirely with the parent to provide Boston with the requisite documents so that enrollment can be completed, and no child is enrolled until the requisite paperwork is received by Boston. Testimony of Soto.

In October 2003, it was (and has remained) Boston’s practice that if a student is enrolled who has not been receiving special education services in a previous school district or who comes to Boston without an IEP, the student is first registered as a regular education student and assigned a school in Boston. A parent may then contact the Evaluation Team Facilitator for the particular school for the purpose of seeking educational evaluations and applying for special education services. Testimony of Soto.

When Parent went to the West Zone Family resource office in October 2003, it is likely that she was assisted by one of two family resource specialists, identified by Ms. Soto in her testimony, who are women and who spoke Spanish. Each of these two specialists had, as of October 2003, been working in this position for at least two years. The primary responsibility of a person in this position is to assist parents to enroll in the Boston Public Schools. In October 2003, it is likely that approximately 10 to 12 families would have been enrolled or otherwise assisted each day by each of these two specialists. Testimony of Soto.

A week or so after visiting the West Zone office in October 2003, Parent obtained additional immunizations for Student’s siblings, but she did not do so for Student because she believed that Student would not be allowed to enroll in the Boston Public Schools even with appropriate immunizations. Testimony of Parent.

Near the end of October 2003, Parent received in the mail, from Boston, information regarding each of Student’s three siblings, indicating that each child had been enrolled in the Boston Public Schools. In the mailing for each of these three children, Parent received a Spanish version of Boston’s Policy Handbook (exhibit S-1) and a Spanish version of Boston’s Parent’s Rights Brochure (exhibit S-24B). Parent stated that she read parts (but not all) of these documents. She did not recall which parts she read. She believed that these documents applied not to Student but only to Student’s siblings. Testimony of Parent.

The Parent’s Rights Brochure received by Parent includes an explanation of a parent’s rights to due process for the purpose of contesting any decision regarding special education services. Exhibit S-24B, pages 5-6. Parent testified that had she read and understood this information in 2003 when she received it, she would not have thought that the information applied to Student. She also explained that, in any event, this information would have been difficult for her to understand as a person who had recently entered the United States. Testimony of Parent.

Soon after Parent received the above-described enrollment information in the mail, Student’s siblings began attending Boston Public Schools, but Student did not. Testimony of Parent.

In February 2004, Parent brought Student to the Boston Medical Center to see a physician, Douglas Hoffman, and a psychologist, Elizabeth Caronna. After the evaluations, Dr. Caronna asked Parent why Student was not enrolled in the Boston Public Schools. Dr. Caronna told Parent that she thought it surprising that Student was not enrolled in school since he had the right to receive special education services until the age of twenty-two years. Parent explained that she did not ask Dr. Caronna any questions regarding this statement. Parent explained, however, that she was provided three phone numbers to call, and she did make the calls and left messages, but no calls were returned. Parent did not recall understanding the purpose of making these calls. Testimony of Parent; exhibits S-4, P-5

Parent was given a copy of Dr. Caronna’s evaluation report, which was provided only in English. Parent had a friend read the evaluation report. The friend did not translate the report for Parent, but did explain to Parent what was written in the evaluation. This report (at page 3, par. 2) includes the following statement:

[Student] is eligible for special education services until the age of 22. His mother should register him at BPS and request a CORE evaluation. Greater Boston Arc (617-783-3900) and the Federation for Children with Special Needs (877-471-0980) will have information about educational and vocational resources in Spanish.

Parent did not recall her friend explaining this part of the evaluation report to her. Testimony of Parent; exhibit S-4, P-5.

Parent testified that on the basis of the previous conversation (in October 2003) with the Boston employee, Parent continued to believe that Student could not be enrolled in the Boston Public Schools and did not know anything about her right to request a due process hearing or her right to request an evaluation for her son. Testimony of Parent.

Parent did not seek to enroll Student until 2006 when she was assisted in doing so by a Department of Mental Retardation (DMR) employee. With the assistance of the DMR employee, Parent obtained for Student the appropriate immunizations, the immunization documentation was delivered to Boston on October 30, 2006, and Student was then enrolled in the Boston Public Schools. Testimony of Parent; exhibit S-9.

DISCUSSION

A. Introduction

Student is an individual with a disability. Until he reached the age of twenty-two years, he fell within the purview of the Individuals with Disabilities Education Act (IDEA)3 and the state special education statute.4 Neither Student’s eligibility status nor his entitlement to special education services (until his twenty-second birthday) is in dispute.

B. Statute of Limitations

Applicability of the Two-Year Statute of Limitations

The initial question to be decided is whether a two-year or a three-year statute of limitations applies to the instant dispute.

Through IDEA 2004, Congress adopted certain amendments to the IDEA that went into effect on July 1, 2005.5 Among these amendments was a two-year statute of limitations with respect to filing of administrative due process complaints – that is, the filing of a Hearing Request with the BSEA.

As a general practice, BSEA Hearing Officers have applied the two-year statute of limitations with respect to all disputes in which the Hearing Request was filed with the BSEA on or after the effective date of the IDEA amendments – that is, July 1, 2005. This practice follows the general rule established by the courts that the statute of limitations applicable to a dispute is the statute of limitations that was in effect when that dispute was filed.6

Student filed his Hearing Request on March 22, 2007 – i.e., after the effective date of the IDEA amendments. Therefore, the IDEA 2004 two-year statute of limitations would apply.

Student’s claims go back to October 2003 – i.e., prior to the effective date of the IDEA 2004 amendments. Student correctly notes that prior to IDEA 2004, a three-year statute of limitations applied to BSEA disputes.7

Student argues that for any alleged violation occurring prior to the effective date of the IDEA 2004 (July 1, 2005), a parent should be permitted to utilize the previous three-year statute of limitations. The argument is that the IDEA procedural requirements in effect at the time of the alleged transgressions (i.e., October 2003) should govern, just as one would look back to the substantive law in effect at that time in order to determine Boston’s responsibilities under the IDEA. Conversely, to apply the 2004 IDEA amendments to an October 2003 claim would, Student argues, result in a retroactive application of law not then in effect, and as a general rule, retroactive application of a statute is not permitted.

The decisions relied upon by Student stand for the proposition, as explained by one court, that a “ newly enacted statute that shortens the applicable statute of limitations may not be applied retroactively to bar a plaintiff’s claim that might otherwise be brought under the old statutory scheme because to do so would be manifestly unjust.”8 However, when one reviews the facts and holdings of this decision and others relied upon by Student, they do not support his position.

In the case from which the above quote is taken, the Court concluded that a statutory change broadening the time for filing a claim did not apply because the new statute was not in effect when the claim was actually filed. This decision supports the proposition that the applicable statute of limitations is the one in effect at the time of filing and therefore is not helpful to Student’s position.9

In another decision relied upon by Student, plaintiffs contended that the hearing officer incorrectly applied the IDEA’s two-year statute of limitations to events and proceedings that occurred before the statute’s July 1, 2005 effective date. The Court explained that amendments set forth in the IDEA, including the adoption of statutes of limitation for the filing of due process complaints and federal court actions, do not apply retroactively. Under this standard, the Court held that the hearing officer erred in applying the IDEA’s two-year limitations period. However, the facts of that case are inapposite to the present dispute since the plaintiffs had filed their request for a due process hearing when the earlier three-year statute of limitations was still in effect.10

The final decision relied upon by Student essentially holds that a new statute of limitations contained within IDEA 2004 (relative to appealing the administrative decision to court) may not be applied retroactively. Again, the facts of that case are inapposite to the instant dispute because the administrative decision in that case had been issued prior to the effective date of the amended IDEA.11

I am aware of no administrative or judicial decision allowing a claimant to utilize a statute of limitations that was no longer in effect when the complaint or Hearing Request was filed.

For these reasons, I find that Student’s procedural rights with respect to time limitations for filing with the BSEA had changed by the time that he filed with the BSEA. At that time, Student only had the right to look backwards two years unless one of the statutory exceptions applied. Student may not attempt to broaden his filing rights by applying a statute of limitations that was no longer in effect when he filed his Hearing Request .

I conclude that since the Hearing Request was filed after July 1, 2005, the two-year statute of limitations within the 2004 IDEA amendments applies.

Exceptions to the Two-Year Requirement

The IDEA 2004 statute of limitations 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 part, 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 part to be provided to the parent.12

As found within subsection D above, an exemption to the two-year timeframe applies if the school district has withheld “information . . . that was required under this part to be provided to the parent” (emphasis supplied).

The statutory phrase “this part” 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. Required information under “this part” would include, for example, a notice of procedural safeguards that the school district must provide to parents pursuant to 20 USC § 1415(d).

The protections under part B, as they pertain to the rights of an individual student, generally apply to students who have been enrolled in a public or private school. I am aware of no information that must be provided to a parent of a child who has been enrolled in neither.

The other exemption under subsection D is when there have been specific misrepresentations by the school district that it had resolved the problem forming the basis of the complaint. There is no argument that this exemption applies to the instant dispute.

Accordingly, I find that none of the statutory exceptions is relevant to the instant dispute.

When Claim Accrued

The next issue to be considered is the date that Student’s claim accrued for purposes of the running of the two-year statute of limitations. Pursuant to the IDEA statute of limitations (quoted above), this date is when Parent “knew or should have known about the alleged action that forms the basis of the complaint.”

In his written and oral arguments, Student has sought to characterize this quoted language as the date when Student or his mother “knew or should have known that [Boston Public Schools] violated their special education rights.”13 I suggest, however, that this misunderstands the accrual standard.

Instead of focusing on knowledge (and violation) of legal rights, the above-quoted accrual language within the statute of limitations focuses on knowledge of certain “actions” by Boston, where those actions underlie Parent’s “complaint.”

At the outset, I note the general rule that Parent may not use her ignorance of her son’s legal rights (for example, to receive special education until the age of twenty-two years or until he receives a high school diploma, whichever comes first) as a reason, in and of itself, for tolling the statute of limitations. This is because accrual is a matter of federal law, and the federal courts have generally concluded that ignorance of one’s legal rights does not toll a statute of limitations.14

Perhaps because the IDEA statute of limitations has been in effect only since July 1, 2005, few reported judicial decisions are available for guidance.15 However, one may turn to comparable language used by the First Circuit to determine when an action accrues under 42 USC 1983. It is well settled in this Circuit that the accrual period for a § 1983 action “ordinarily starts when the plaintiff knows, or has reason to know, of the injury on which the action is based.”16 Reviewing the cases in which the § 1983 accrual standard has been applied makes clear that the inquiry is the date that plaintiff knew or should have known of the operative facts – for example, the date when plaintiff was told he was terminated from employment, the date plaintiff learned of his brother’s death, or the date plaintiff was injured and went to the hospital for treatment – that formed the basis of the legal claim.17

Similarly, in discussing the issue of accrual in special education cases prior to IDEA 2004, the First Circuit stated that “the time of accrual of a civil rights action is when the aggrieved party knows or has reason to know of the injury which is the basis for his action or when facts supportive of a civil rights action are or should be apparent to a reasonably prudent person similarly situated.”18

For these reasons, I find that the inquiry in the present dispute is when Parent knew or should have known about the operative facts that formed the basis of her claim. This occurred when Boston allegedly refused Parent’s request to enroll her son in the Public Schools. It is not disputed that this occurred in October 2003. This was, of course, more than two years prior to Parent’s filing of her Hearing Request and, for this reason, Parent is precluded by the statute of limitations from challenging Boston’s alleged actions at that time.

Even were I to accept Student’s arguments and look back to the date that Parent knew or should have known that Student had the right to receive special education services from Boston (and therefore knew or should have known that Boston was allegedly violating those rights), Student would not have timely filed with the BSEA. This is because there is ample evidence in support of Boston’s contention that no later than February 2004, Parent should have known that her son likely had the right to receive special education services from Boston, and at that time Parent was provided information to assist her to pursue this right.

Near the end of October 2003, Parent received in the mail for each of Student’s three siblings a packet of material from Boston. The packet contained material, in Spanish, that explained the rights of disabled students to receive special education, as well as the right to appeal any decision by Boston denying eligibility for special education services.

Parent credibly testified that she understood this material to apply not to Student but rather only to Student’s siblings. Presumably, Parent believed that Boston sent this information for the purpose of informing her regarding Student’s siblings, not Student. Nonetheless, I find that these written materials, which are written generally to apply to all students, provided sufficient information to put Parent on notice that Student might possibly be eligible for special education and that Parent could appeal his lack of educational services.

In February 2004, Student was evaluated by Dr. Caronna who advised Parent that it was surprising that Student was not enrolled in school since he would be eligible to receive special education services until the age of twenty-two years. Similarly, in Dr. Caronna’s report ,which was given to Parent, Dr. Caronna stated that Student is eligible for special education services, she stated that Parent should register Student with the Boston Public Schools, and she provided the names of two organizations that would be helpful to Parent regarding her son’s education. This written report was provided only in English, and although Parent asked a friend (who understood English) to read and explain the report to her, apparently the explanation of Parent’s friend did not result in Parent’s understanding this part of the report. Nonetheless, I find that this oral and written information to Parent put her on notice that Student would likely be eligible for special education services from Boston, and provided Parent with the phone numbers of agencies that might assist her in the process of applying for educational services from Boston.

For these reasons, I find that possibly as early as October 2003 and, in any event, no later than February 2004, Parent understood that her son had been denied enrollment by Boston and should have known that he was likely eligible to receive special education services from Boston.

Therefore, even if I were to adopt Student’s understanding of the accrual standard, I would find that Parent had only two years from February 2004 to file a Hearing Request with the BSEA for the purpose of disputing Boston’s alleged denial of special education services in October 2003. Student failed to do so by not filing the Hearing Request until March 22, 2007.

Waiver of Statute of Limitations Defense

Student makes several additional arguments. He takes the position that by failing to raise the statute of limitations defense in its responsive pleadings, Boston has waived this defense. In support of this argument, Student notes, correctly, that the Federal Rules of Civil Procedure, Rule 8(c) provides as follows:

Affirmative Defenses. In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations , waiver, and any other matter constituting an avoidance or affirmative defense. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court on terms, if justice so requires, shall treat the pleading as if there had been a proper designation. [Emphasis supplied.]

Student argues that failure to include this defense, under the Federal Rules, may result in waiver of the defense.19

I agree with Student that the Federal Rules of Civil Procedure may provide useful guidance when interpreting comparable procedural requirements under the IDEA or under the BSEA administrative rules. But, in this case, the argued analogy goes too far for the simple reason that there is nothing within the IDEA that would allow one to conclude that the IDEA either explicitly or implicitly is intended to embrace the federal requirement contained within the above-quoted Rule 8(c).

The requirement of a responsive pleading in an IDEA proceeding is found within IDEA 2004, which provides in relevant part as follows (note that IDEA refers to a Hearing Request as a “complaint”):

Response to complaint. (i) Local educational agency response. (I) In general. If the local educational agency has not sent a prior written notice to the parent regarding the subject matter contained in the parent’s due process complaint notice, such local educational agency shall, within 10 days of receiving the complaint, send to the parent a response that shall include– (aa) an explanation of why the agency proposed or refused to take the action raised in the complaint; (bb) a description of other options that the IEP Team considered and the reasons why those options were rejected; (cc) a description of each evaluation procedure, assessment, record, or report the agency used as the basis for the proposed or refused action; and (dd) a description of the factors that are relevant to the agency’s proposal or refusal. (II) Sufficiency. A response filed by a local educational agency pursuant to subclause (I) shall not be construed to preclude such local educational agency from asserting that the parent’s due process complaint notice was insufficient where appropriate. (ii) Other party response. Except as provided in clause (i), the non-complaining party shall, within 10 days of receiving the complaint, send to the complaint a response that specifically addresses the issues raised in the complaint.20

Several things may be noted from this language. First, in contrast to the Federal Rules, there is nothing within the IDEA that requires that affirmative defenses be included in a party’s response to the Hearing Request .

Second, the statutory language requiring a response must be read in context.21 The context is that a school district must only file a response to the Hearing Request if the school district has not provided the parents with a “prior written notice.” The IDEA explains the content of a prior written notice as follows:

Content of prior written notice. The notice required by subsection (b)(3) shall include- (A) a description of the action proposed or refused by the agency; (B) an explanation of why the agency proposes or refuses to take the action and a description of each evaluation procedure, assessment, record, or report the agency used as a basis for the proposed or refused action; (C) a statement that the parents of a child with a disability have protection under the procedural safeguards of this part and, if this notice is not an initial referral for evaluation, the means by which a copy of a description of the procedural safeguards can be obtained; (D) sources for parents to contact to obtain assistance in understanding the provisions of this part; (E) a description of other options considered by the IEP Team and the reason why those options were rejected; and (F) a description of the factors that are relevant to the agency’s proposal or refusal.22

This clarifies that a sufficient response by the school district may be an explanation, in writing, of what the school district did and why it did it. The prior written notice would typically be prepared prior to, and outside the context of, any administrative due process proceeding. It would be illogical to conclude that this response must include affirmative defenses to a Hearing Request that has not yet been filed. If a prior written request is provided to parents, the school district need not provide any further response to the Hearing Request if and when it is filed. This further clarifies that IDEA 2004 did not intend to require the school district to be required to include affirmative defenses, such as the statute of limitations, within its response to the Hearing Request .

For these reasons, I find that the IDEA does not require that Boston include its affirmative defense of the statute of limitations in its response to Student’s Hearing Request and, therefore, Boston did not waive this defense by including it, for the first time, in a subsequent motion.23

Continuing Violation

Without analysis, Student argues that the continuing violation theory allows him to reach back more than two years prior to his filing of the Hearing Request .

Student refers to and relies upon, as do I, a previous BSEA ruling that provides a comprehensive analysis of the continuing violation theory in the context of a special education dispute.24 I need not repeat the analysis here.

As the previous BSEA ruling made clear, a continuing violation is “one that could not reasonably be expected to be made the subject of a lawsuit when it first occurred because its character as a violation did not become clear until it was repeated during the limitations period.” Similarly, a party will be barred from utilizing the continuing violation doctrine if, prior to the statute of limitations cutoff, “the acts are sufficiently permanent to make the plaintiff aware of the need to assert his or her rights.”25

These standards are not met in the instant dispute. The character of the alleged violation (failure to enroll in October 2003) was clear from the beginning, and the facts were sufficiently “permanent” at that time so as to make Parent aware of the need to assert her rights.

I therefore find that the continuing violation theory, even if generally applicable to special education cases, is not relevant to the instant dispute.

Child Find Requirements

Student argues that Boston had IDEA-mandated child find obligations, which it failed to meet, thereby prejudicing Student.26

Even assuming that Student has a viable child find claim, I can find no relevance of this claim to the statute of limitations analysis above or to the immunization analysis below.

A child find violation would not toll the statute of limitations. Similarly, any child find obligation would be separate and distinct from the requirement that Student be immunized prior to enrollment, as discussed below.

For these reasons, I find that any obligation that Boston may have had under child find requirements is not relevant to this Decision, which is focused exclusively on issues pertaining to the statute of limitations and Student’s immunization.

C. Student’s Immunization

Massachusetts statute precludes enrollment of a student in a public school unless and until the school receives appropriate documentation regarding immunization of the student, unless to do so would be contrary to “sincere religious beliefs.” The law provides, in relevant part, as follows:

No child shall, except as hereinafter provided, be admitted to school except upon presentation of a physician’s certificate that the child has been successfully immunized against diphtheria, pertussis, tetanus, measles and poliomyelitis and such other communicable diseases as may be specified from time to time by the department of public health.27

Student does not dispute the relevance and implications of this statute to the present dispute.28 Student also does not disagree that Boston did not receive the requisite immunization documentation until 2006, at which time, Boston then enrolled Student. Rather, Student takes the position that he and Parent were, in effect, precluded from obtaining this documentation by what Boston said to Parent in October 2003 when Parent first sought to enroll Student in the Boston Public Schools.

Parent testified credibly that when she attempted to register Student in October 2003, she understood a Boston employee to tell her that Student could not be enrolled. Parent added in her testimony that no reason was given by the Boston employee as to why Student could not be enrolled, and Parent did not question this or further inquire with the Boston employee.

Although I accept, on its face, Parent’s recollection of what she understood the Boston employee to be saying to her, it is not possible to determine, with any certainty, everything that was actually said between Parent and the Boston employee at that time.

However, I need not determine more specifically what was said in order to resolve this aspect of the dispute. This is because from Parent’s experience obtaining immunization documentation for Student’s three siblings as a prerequisite to their enrollment, Parent presumably knew that proper immunization documentation was also required prior to Student’s enrollment in the Boston Public Schools. In other words, it was likely Parent’s belief that Boston would not enroll Student in any event (rather than Parent’s understanding or lack of understanding of the immunization requirements relative to Student) that resulted in her not obtaining and submitting to Boston the requisite immunization document for Student until October 30, 2006.

Therefore, I am not persuaded that Parent was, in effect, precluded from obtaining the immunization documentation by what a Boston employee said to her in October 2003.

In addition, of course, Student is precluded by the two-year statute of limitations from “looking back” to alleged violations that occurred in October 2003, for the reasons explained above in this Decision.

For these reasons, I find that Boston did not have any responsibility to enroll Student until it received the requisite immunization documentation on October 30, 2006 .

ORDER

Student’s claims prior to March 22, 2005 are barred by the statute of limitations.

Boston is exempt from any responsibility to have provided educational services to Student prior to October 30, 2006, when Boston first received Student’s medical certificate of appropriate immunizations.

By the Hearing Officer,

William Crane

Dated: July 3, 2007


1

“James” is a pseudonym chosen by the Hearing Officer to protect the privacy of the Student in publicly available documents.


2

In October 2003, Peggy Soto was a family resource specialist at Boston’s West Zone Family Resource Office which is located in Hyde Park. Currently, Ms. Soto is employed by Boston as its Director of the East Zone Family Resource Office. Testimony of Soto.


3

20 USC 1400 et seq . Congress reauthorized and amended the IDEA in 2004, with changes to take effect on July 1, 2005. Unless otherwise indicated, references in this Decision to the IDEA are to IDEA 2004.


4

MGL c. 71B.


5

20 USC 1400 et seq . Congress reauthorized and amended the IDEA in 2004, with relevant changes to take effect on July 1, 2005. Unless otherwise indicated, references in this Decision to the IDEA are to IDEA 2004.


6

See, e.g., Solomon v. U.S. , 467 F.3d 928 (6 th Cir. 2006); Banas v. American Airlines , 969 F.2d 477 (7 th Cir. 1992) .


7

In Re: Fall River Public Schools , BSEA # 00-0771, 5 MSER 183 (1999) (adopting a three-year statute of limitations in BSEA disputes).


8

Chenault v. U.S. Postal Service , 37 F.3d 535, 539 (9 th Cir. 1994).


9

Id.


10

Anthony v. District of Columbia , 463 F.Supp.2d 37, 42-43 (DDC 2006).


11

Pettigrew v. Middletown Area Sch. Dist ., 2006 WL 4032181, 2006 US Dist. Lexis 69041 (MD Pa. 2006).


12

20 USCS § 1415(f)(3).


13

Student’s Memorandum in Support of his Right to Compensatory Services Retroactive to September 2003 , at p. 4.


14

See, e.g., DuMarce v. Scarlett , 446 F.3d 1294 (Fed. Cir. 2006); Armstrong v. Martin Marietta Corp . , 138 F.3d 1374 (11 th Cir. 1998); Barrow v. New Orleans S.S. Ass’n , 932 F.2d 473 (5 th Cir. 1991).


15

I am aware of only one federal court decision that has interpreted this language. In Somoza v. New York City Dept. of Educ . , 475 F.Supp.2d 373 (SDNY 2007), the court considered when a parent knew or should have known that her daughter was not receiving an appropriate education. The court determined that this occurred only after the student received the benefits of a particular program “long enough to produce evidence that the education she had previously received had not yielded comparable results, and hence may not have been sufficiently appropriate for her circumstances.” Id . at 385-386.


16

E.g., Centro Medico del Turabo, Inc. v. Feliciano de Melecio , 406 F.3d 1 (1 st Cir. 2005); Ruiz-Sulsona v. University of Puerto Rico , 334 F.3d 157 (1 st Cir. 2003) .


17

Ruiz-Sulsona v. University of Puerto Rico , 334 F.3d 157 (1 st Cir. 2003) ; Carreras-Rosa v. Alves-Cruz , 127 F.3d 172 (1 st Cir. 1997); McIntosh v. Antonino, 71 F.3d 29, 33-34 (1st Cir.1995).


18

Nieves-Marquez v. Puerto Rico , 353 F.3d 108, 119 (1 st Cir. 2003).


19

Student relies on Anthony v. District of Columbia , 463 F.Supp.2d 37 (DDC 2006), in which the Court rejected the argument that the statute of limitations had been waived because, at the time of the hearing, there was no requirement that a responsive pleading be filed.


20

20 USCS § 1415 (c)(2)(B).


21

See, e.g., Food & Drug Admin. v. Brown & Williamson Tobacco Corp. , 529 U.S. 120, 133 (2000) (“words of a statute must be read in their context and with a view to their place in the overall statutory scheme”).


22

20 USCS § 1415 (c)(1).


23

I make no finding with respect to when a party must file any claims regarding affirmative defenses. I only conclude that failure to include the affirmative defense of the statute of limitations within the non-complaining party’s response to the Hearing Request does not result in waiver of the statute of limitations defense. In the instant dispute, Student argued, during closing argument for the first time, that he was prejudiced by the late filing of Boston’s motion for summary judgment, which included, for the first time, Boston’s statute of limitations defense. Student claimed that he was prejudiced because the summary judgment motion was filed subsequent to his filing his discovery requests. Student’s allegations of prejudice, if assumed to be true, are not sufficient in and of themselves to warrant waiver of the statute of limitations defense.


24

In Re: North Adams Public Schools , BSEA # 06-5371, 12 MSER 111 (SEA MA 2006) and judicial decisions cited therein.


25

Id.


26

42 USC 1412(a)(3); 34 CFR 300.125 (citations are to the statute and regulations in effect in October 2003).


27

MGL c. 76, s. 15.


28

The US Supreme Court has affirmed the authority of a state or local government to require appropriate immunizations ( Jacobson v. Commonwealth of Massachusetts , 197 U.S. 11 (1905)) , and the Massachusetts Supreme Judicial Court has upheld a state statute expressly requiring children to be vaccinated before they can be admitted to the public schools ( Spofford v. Carlton , 238 Mass. 528 (1921)) .


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