COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Marshall1 and Harwich Public Schools
BSEA # 08-1670
RULING ON PARTIES’ MOTIONS
I. INTRODUCTION
This ruling 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 (M.G.L. ch. 71B), the state Administrative Procedure Act (M.G.L. ch. 30A) and the regulations promulgated under said statutes.
This Ruling addresses the following motions filed by Parent:
1. Motion to Compel Harwich Public Schools to Comply with 34 CFR Section 300.508(e) LEA Response to a Due Process Complaint ,
2. Motion to Compel Admission , and
3. Motion to Compel That Both Attorneys Sign All Documents .
This Ruling also addresses the following motions filed by Harwich Public Schools:
1. Motion to Dismiss ,
2. Supplemental Motion to Dismiss , and
3. Motion to Strike .
II. PROCEDURAL HISTORY
On November 29, 2007, Parent2 filed with the Bureau of Special Education Appeals (BSEA) her Hearing Request , seeking a variety of relief against Harwich Public Schools (Harwich), including but not limited to, (1) a determination that her son has not been found either eligible for special education services or entitled to protections under Section 504 of the Rehabilitation Act of 1973 (Section 504), (2) a new determination of her son’s right to be protected from discrimination under Section 504, and (3) an order requiring reimbursement for out-of-pocket expenses associated with Parents’ private, unilateral placement of their son at Auburndale School3 since September 2007. Harwich filed a response to the Hearing Request .4
On December 4, 2007, Harwich filed with the BSEA a Motion to Dismiss . In this Motion , Harwich took the position that many, but not all, of Parent’s claims were barred by res judicata or collateral estoppel because of a May 22, 2007 BSEA decision authored by Hearing Officer Beron in BSEA # 06-4721 (May 2007 Decision) involving the same school district (Harwich) and the same Student as in the instant appeal.5 By letter dated December 12, 2007, Parent filed her opposition. Each party then filed a further response. A Motion hearing was held on January 7, 2008.
By letter of December 13, 2007, Parent filed a Motion to Compel Harwich Public Schools to Comply with 34 CFR Section 300.508(e) LEA Response to a Due Process Complaint ( Motion to Compel ), seeking to require Harwich to provide additional information in response to her Hearing Request . Parent argues that although Harwich filed a response to her Hearing Request , the response improperly failed to respond to six claims identified in Parent’s Hearing Request . On December 20, 2007, Harwich filed its opposition to Parent’s Motion to Compel , and by letters of December 31, 2007 and January 15, 2008, Parent filed a response to Harwich. A Motion hearing was held on January 7, 2008.
On January 3, 2008, Harwich filed a Motion to Strike , seeking to remove from the administrative record Mother’s letter to the Hearing Officer dated December 30, 2007 and Father’s affidavit also dated December 30, 2007. On January 15, 2008, Parent filed an opposition to this Motion . Pursuant to BSEA Hearing Rule VIID, the Motion to Strike is addressed on the basis of the papers filed by the parties without a hearing because a hearing would not advance my understanding of the issues.
On January 15, 2008, Parent filed a Motion to Compel Admission , seeking to require Harwich’s attorney to admit that a phrase used in her legal memorandum has a particular meaning. On January 16, 2008, Harwich filed an opposition to this Motion ; and on January 22, 2008, Parent filed a reply to the opposition. Pursuant to BSEA Hearing Rule VIID, the Motion to Compel Admission is addressed on the basis of the papers filed by the parties without a hearing because a hearing would not advance my understanding of the issues.
By letter of January 9, 2008 (received on January 11, 2008), Parent withdrew one claim (seeking protection and accommodations under Section 504) from her Hearing Request and clarified several other claims. In light of this modification and clarification, I notified the parties that the withdrawn claim would not be further considered by me and that I would rule on Parent’s Hearing Request as clarified by Parent. I further notified Harwich that it may file a supplemental motion or response in light of the withdrawal and clarification. On January 22, 2008, Harwich filed a Supplemental Motion to Dismiss , seeking dismissal of all remaining claims. On January 29, 2008, Parent filed her objection to the Supplemental Motion to Dismiss . Pursuant to BSEA Hearing Rule VIID, the Supplemental Motion to Dismiss is addressed on the basis of the papers filed by the parties without a hearing because a hearing would not advance my understanding of the issues.
On January 22, 2008, Parent filed a Motion to Compel That Both Attorneys Sign All Documents . On January 25, 2008, Harwich filed its objection to this Motion . Pursuant to BSEA Hearing Rule VIID, the Motion to Compel That Both Attorneys Sign All Documents is addressed on the basis of the papers filed by the parties without a hearing because a hearing would not advance my understanding of the issues.
III. FACTS
The following facts are taken from Parent’s Hearing Request and the May 2007 Decision, or are undisputed by the parties.6 Student’s educational history is recounted in detail in the May 2007 Decision, and only the relevant parts of that history are summarized here.
Student Profile
1. Student is a fourteen year-old boy who lives with his Parents in Harwich, MA. He currently attends the Auburndale School (Auburndale) as an 8 th grader, having been privately placed there by his Parents as a residential student since September 2006. Auburndale is a private, regular education school for boys. Auburndale does not accept public funding directly from a local school district but will accept reimbursement that a parent receives from a local school district for the cost of tuition and related services.7
2. Student is bright and inquisitive, and he has an immense intellectual capacity. He exhibits great curiosity about the physical and social world around him, with a particular interest in science and technology. He aspires to attend the Air Force Academy and become a pilot.8
3. Student has been diagnosed as having a Pervasive Developmental Disability, Attention Deficit Disability, and learning disability related to written expression. Student has limited judgment of socially appropriate behaviors in interactive social situations, including social situations at school.9
Educational History prior to the May 2007 Decision
4. Over the course of several years leading up to the February 2007 Hearing before BSEA Hearing Officer Beron, Parents sought to obtain special education and Section 504 eligibility for their son. At Parents’ request, Harwich had on several occasions reviewed evaluations indicating one or more disabilities, but Harwich consistently determined (most recently at an IEP Team meeting on May 23, 2006) that notwithstanding his disabilities, Student was doing well academically and socially and therefore did not qualify for special education eligibility. Similarly, Harwich determined (most recently at the May 23, 2006 Team) that Student was not eligible for protection against discrimination under Section 504 because his disability “did not substantially limit a major life event.”10
5. On August 21, 2006, Parents advised Harwich that they intended to withdraw their son from the Harwich Middle School, to privately place him at Auburndale, and to seek payment from Harwich for tuition and related expenses.11 On September 8, 2006, Harwich’s attorney wrote Father, stating that it would find Student eligible for special education but that it was continuing to propose through settlement (rather than through an IEP developed during an IEP Team meeting) that Student receive an eight week extended evaluation because Harwich believed that the then current evaluation information was inconclusive and that an extended evaluation would determine what services would be appropriate in an IEP. Harwich developed (outside of the IEP Team process) and proposed a partial IEP for purposes of providing special education services and evaluating Student, and then sought to defend this IEP at the February 2007 BSEA Hearing .12
The May 2007 Decision
6. An evidentiary Hearing occurred on February 27 and 28, 2007, the record closed on April 30, 2007, and Hearing Officer Beron issued her Decision on May 22, 2007.13
7. The issues addressed by Hearing Officer Beron were (1) whether Harwich’s proposed partial IEP and extended evaluation of Student offered FAPE, (2) whether Parents were entitled to reimbursement for their private placement at Auburndale, and (3) whether Student should have been previously found eligible for special education services and, if so, whether Parents were entitled to compensatory educational services.14
8. During the BSEA Hearing, the parties did not contest Student’s special education eligibility, nor did the parties ask Hearing Officer Beron to rule on the question of Student’s special education eligibility. In her May 2007 Decision, the Hearing Officer agreed with Parents that the process utilized by Harwich to develop its proposed partial IEP was improper (see par. 12 below) but nevertheless concluded that “the evidence shows that [Student] should receive . . . a partial IEP.”15 The Hearing Officer also noted that Harwich’s proposed “IEP established eligibility” for Student.16
9. After considering the evidentiary record and arguments of the parties, Hearing Officer Beron ruled that Harwich’s proposed IEP was appropriate, provided that it was modified to include certain additional accommodations specified by the Hearing Officer. The Hearing Officer further ruled that Student required further evaluations “because there is conflicting information about [Student’s] needs,” including the extent and implications of an attention deficit disorder, Asperger’s Syndrome, and emotional disability.17 The Hearing Officer indicated that as a result of the anticipated evaluations, Student may be “determined to have a nonverbal learning disability, a disorder of written expression, Asperger’s syndrome, PDD, ADD, an emotional disability, or a combination of some of these disabilities.”18
10. The Hearing Officer found that these evaluations should occur in a therapeutic setting that provides pragmatic instruction and therapy, and Harwich was ordered to “ immediately locate or create a summer program where the partial IEP and evaluations can be implemented.”19 The Hearing Officer concluded that the Devereux School appeared to offer an appropriate program for this purpose. The Hearing Officer also directed Harwich to explore other private therapeutic programs (including Reed Academy, the Elan School, Pathways, and the League School ) because Parents had already declined to send their son to Devereux for an interview and Harwich had agreed to consider other schools.20
11. The May 2007 Decision also found that Harwich’s previous determinations of ineligibility for special education services, as well as its previous determination of ineligibility under Section 504, were proper. In support of this finding, the Hearing Officer cited to Student’s grades and appropriate social skills in school, and to Parents’ failure to provide full cooperation to Harwich for the purpose of Harwich’s considering the extent and implications of Student’s disabilities.21
12. Hearing Officer Beron agreed with Parents that Harwich’s development of its proposed partial IEP and extended evaluation were “procedurally improper.” However, the Hearing Officer found that the evidence demonstrated that Student should receive an evaluation and a partial IEP and, as a result, the procedural violations did not result in a deprivation of educational rights or deny FAPE to Student. The Hearing Officer concluded that compensatory education was not warranted.22 Finally, the Hearing Officer found that even were Parents to have met their burden to establish the substantive inappropriateness of the IEP and request for further evaluation, Parents would not be entitled to reimbursement for their expenses related to Student’s attending Auburndale because Parents had not shown that Auburndale was appropriately responsive to Student’s needs.23
Educational History Subsequent to the May 2007 Decision
13. Subsequent to the May 2007 Decision, Harwich made efforts to locate a therapeutic program at which Student could be placed pursuant to the Hearing Officer’s order. Nevertheless, Harwich was unsuccessful. Harwich then developed, outside of the IEP Team process, a new partial IEP dated August 28, 2007 for the purpose of placing and evaluating Student within the Harwich Middle School resource room where he would be educated with students who have a disability.24
14. Parents chose not to have their son receive services or be evaluated at the Harwich Middle School pursuant to the August 28, 2007 IEP. Instead, Parents have continued to place their son privately at Auburndale during the current school year.25
IV. PARENT’S CLAIMS
Parent’s Hearing Request includes a large number of issues (seventeen) and prayers for relief (twenty-one), and is both lengthy (twenty-nine pages) and comprehensive in scope. The Hearing Request sought a finding that Student currently is not eligible for either special education or Section 504, sought relief regarding Harwich’s alleged unlawful actions subsequent to the May 2007 Decision, and sought a new BSEA determination that Student should be considered eligible for protection under Section 504 and a Section 504 plan should be written to provide accommodations to her son. By letter to the Hearing Officer, dated January 9, 2008, Parent modified her Hearing Request by withdrawing the claim that her son should be determined eligible under Section 504, and therefore this claim is not further considered.
For purposes of considering Harwich’s Motion to Dismiss and Harwich’s Supplemental Motion to Dismiss , Parent’s claims may be summarized as follows:
1. Parent claims that Student has not been determined eligible for and is not currently eligible for either special education or Section 504. Parent does not seek a new BSEA determination of eligibility for special education or Section 504.
2. Parent claims that Harwich failed to comply with the May 2007 Decision’s order that Harwich locate and create a summer program, and that this failure resulted in a denial of FAPE.
3. Parent claims that Harwich’s proposed August 28, 2007 IEP violated the IDEA because, at the time that the IEP was written, Student had not been determined eligible for special education.
4. Parent claims that, at the time that the August 28, 2007 IEP was written, there was sufficient evidence to believe that Student did not have an emotional disturbance disability and insufficient evidence to believe that Student may be disabled by and in need of special education on account of such a disability.
5. Parent claims that, when the August 28, 2007 IEP was written, the nature and severity of Student’s disabilities did not preclude him from being educated with non-disabled students. Therefore, Parent claims that Harwich’s proposed August 28, 2007 IEP (calling for Student’s placement at the Cape Cod Collaborative where all students have a disability) violates Student’s right to be educated in the least restrictive environment.
6. Parent claims that the August 28, 2007 IEP was not developed in accordance with procedural requirements of the IDEA and does not meet the statutory definition of an IEP, and therefore the IEP is not valid.
7. Parent claims that because there was no valid IEP at the start of the school year in September 2007, because there was no Section 504 accommodation plan at that time, and because Harwich significantly impeded Parents’ opportunity to participate in the decision-making process at that time, Student was denied FAPE.
8. Finally, Parent claims that as a result of Harwich’s denial of FAPE, Parents were entitled to place their son privately at Auburndale in September 2007; and because Auburndale is an appropriate placement for Student, Parents should be reimbursed for their out-of-pocket expenses for Student’s placement at Auburndale since September 2007.
V. DISCUSSION
A. Legal Framework
The special education laws relevant to this appeal are the federal Individuals with Disabilities Education Act (IDEA)26 and the state special education statute.27
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.”28 The state special education law also requires that an eligible student receive FAPE.29 The principal mechanism for providing FAPE is the development and implementation of each student’s individualized education program (IEP).30
The eligibility standards under the state special education law are similar to, but somewhat broader than, the federal standards. In order to be eligible under the state standards, a student must “ have a disability(ies), and as a consequence is unable to progress effectively in the general education program without specially designed instruction or is unable to access the general curriculum without a related service.”31
Section 504 of the federal Rehabilitation Act (Section 504) is also relevant to the present appeal.32 Section 504 eligibility extends only to persons who fit within the term “handicapped person” which is defined as “any person who (i) has a physical or mental impairment which substantially limits one or more major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment.”33
Pursuant to its Motion to Dismiss , Harwich seeks to dismiss some, but not all, of Parent’s claims under the doctrine of res judicata. Under res judicata, a final judgment on the merits of an action precludes the parties from relitigating issues that were or could have been raised in that action.34 More specifically, the three elements of res judicata are (1) a final judgment on the merits in an earlier suit, (2) “sufficient identicality” between the causes of action asserted in the earlier and later suits, and (3) “sufficient identicality” between the parties in the two suits.35
It is not disputed that the first and third elements are satisfied because the May 2007 Decision was a BSEA Hearing Officer’s final judgment on the merits in an earlier appeal and the parties in the appeal before Hearing Officer Beron and the parties before me are effectively identical.36
Therefore, the central question under res judicata with respect to the present appeal is which, if any, earlier and present claims are sufficiently identical so that they may not be relitigated – that is whether any claims in the present appeal are identical to claims asserted in the earlier appeal and are therefore barred by res judicata, or whether any present and earlier claims, although not identical, nevertheless derive from a “common nucleus of operative facts” and are barred by res judicata because Parent could have brought these claims in the earlier action.37 This principle effectively “prevents plaintiffs from splitting their claims by providing a strong incentive for them to plead all factually related allegations and attendant legal theories for recovery the first time they bring suit.”38
In its Motion to Dismiss , Harwich also relies upon the doctrine of collateral estoppel. Under this doctrine, once an issue of fact or law necessary to a judgment has been decided, that decision may preclude relitigation of the issue in an appeal on a different cause of action involving a party to the first case.39
The doctrines of res judicata and collateral estoppel, whose parameters have typically been developed within the context of litigation in court, apply equally to a BSEA Hearing Officer’s decision regarding the merits of a special education dispute.40 The Supreme Court has noted that these two doctrines “relieve parties of the cost and vexation of multiple lawsuits, conserve judicial resources, and, by preventing inconsistent decisions, encourage reliance on adjudication,”41 and these underlying purposes apply equally to a BSEA proceeding.
Finally, I consider the standard for review of a motion to dismiss. BSEA Rules and the Standard Adjudicatory Rules of Practice and Procedure governing BSEA proceedings 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.42 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.”43 Consistent with the legal standards applied by federal courts with respect to a motion to dismiss, I am required to deny Harwich’s Motion to Dismiss and its Supplemental Motion to Dismiss if Parent’s Hearing Request would support relief on any theory of law.44
B. Motion to Dismiss
Introduction . In her Hearing Request , Parent has identified seventeen issues for resolution by the BSEA. Through its Motion to Dismiss , Harwich sought to dismiss issues numbered one through eight and issues numbered fourteen through seventeen because these issues allegedly were or could have been addressed through the May 2007 Decision, which was a final judgment on the merits involving the identical parties to the instant dispute. Harwich argues that the doctrines of res judicata and collateral estoppel preclude the BSEA from further considering these issues.
In the May 2007 Decision, the BSEA Hearing Officer concluded after a two-day Hearing in February 2007 that Harwich’s proposed partial IEP (with modifications specified by the Hearing Officer) and evaluations in a therapeutic program provided Student with a free appropriate public education (FAPE) in the least restrictive environment. Harwich was ordered to “immediately locate or create a summer program where the partial IEP and evaluations can be implemented.” Parents’ request for compensatory education and reimbursement for tuition and related expenses at Auburndale were denied by Hearing Officer Beron.45 In August 2007, Parent appealed the May 2007 Decision to federal District Court.46
For purposes of considering Harwich’s Motion to Dismiss , I have summarized Parent’s claims in Part IV above (entitled “Parent’s Claims”) of the instant Ruling. I now consider each of these claims in light of the principles of res judicata and collateral estoppel.
Eligibility claim . In Parent’s first claim (described above in paragraph 1 of Part IV of the instant Ruling), Parent takes the position that Student has not been determined eligible for and is not currently eligible for special education or Section 504. Through this claim, Parent is not asking the BSEA to make a new determination of eligibility for special education or Section 504, but rather seeks to establish Student’s ineligibility on the basis of determinations already made. I now consider whether the May 2007 Decision has addressed this issue.
Parent takes the position that no appropriate eligibility determination was made, or could have been made, within the May 2007 Decision. Relying on state special education regulations,47 Parent writes as follows: “A student cannot be determined eligible for special education unless the precise nature of his disability is known and it is determined to be causal to a failure to make effective progress in the general education program.”48 Parent points out, correctly, that (1) Hearing Officer Beron found that there is “conflicting information” as to Student’s disabilities, necessitating further evaluations, (2) there has never been a determination (either by an IEP Team or by a BSEA Hearing Officer) that Student has one or more particular disabilities that form the basis of eligibility for special education services, and (3) there has been no agreement among the parties establishing eligibility. See Pare III of the instant Ruling (entitled “Facts” and hereinafter referred to as “Facts”) at par. 9.
Parent argues that until an IEP Team meets and determines Student’s disabilities and his eligibility for special education services based upon (and to remedy the effects of) those disabilities, no appropriate services, placement, or IEP can be proposed for her son. Parent also takes the position that until Student’s disabilities have been identified and the effect of those disabilities determined, a BSEA Hearing Officer may not determine eligibility. Parent further argues that an IEP cannot be utilized for the purpose of conducting assessments necessary to determine Student’s disabilities which, in turn, will inform the question of his eligibility for special education and Section 504.
I find that the May 2007 Decision has addressed Parent’s eligibility claim. Her claim is therefore precluded by res judicata, leaving recourse only with her federal Court appeal. My reasoning follows.
Both implicitly (by determining that the evidence warranted Student’s receiving a partial IEP and by then ruling on the appropriateness of Harwich’s proposed partial IEP) and explicitly (by noting that the partial IEP established Student’s eligibility), Hearing Officer Beron determined that Student was eligible for special education services and should receive special education services pursuant to an IEP and placement. The BSEA Hearing Officer also determined that Harwich’s proposed IEP (with modifications) may be utilized for the purpose of further evaluations to determine the nature and scope of Student’s disabilities. See Facts, above, at pars. 8, 9, 10. It is undisputed that there has been no subsequent determination regarding special education eligibility, and Student therefore remains eligible for special education pursuant to the May 2007 Decision.
With respect to Section 504, Hearing Officer Beron considered Harwich’s determinations that Student was not eligible for protection under Section 504 and ruled that those determinations were proper. See Facts, above,, par. 11. The May 2007 Decision made no further findings regarding Student’s eligibility under Section 504, it is undisputed that there has been no subsequent determination regarding Section 504 eligibility, and Student remains ineligible for protection under Section 504 pursuant to the May 2007 Decision.
Accordingly, I find that Parent’s first claim (described above in paragraph 1 of Part IV of the instant Ruling) has been decided by the May 2007 Decision and is barred by res judicata. Therefore, this claim will be dismissed.
Compliance claims . In her second claim (described above in paragraph 2 of Part IV of this Ruling), Parent takes the position that Harwich has not complied with the May 2007 Decision. In its Motion to Dismiss , Harwich agreed that the compliance issues are not subject to dismissal pursuant to res judicata or collateral estoppel.
Parent’s compliance claim therefore will not be dismissed under principles of res judicata and collateral estoppel.
August 28, 2007 IEP claims . Parent’s claims regarding Harwich’s proposed August 28, 2007 IEP are described above in paragraphs 3 through 6 of Part IV of this Ruling. These claims are not subject to res judicata or collateral estoppel because they reflect issues subsequent to and not considered in the May 2007 Decision.
In its Motion to Dismiss , Harwich does not argue to the contrary, except with respect to one aspect of these claims – that is, Harwich claims that it has already been determined that it was appropriate for Harwich to develop the August 28, 2007 IEP without involvement of the IEP Team. Harwich cites to a previous decision by Hearing Officer Beron in another matter, where she concluded that because a school district was ordered by the Hearing Officer to issue an IEP with minor revisions, the school district was not required to convene an IEP Team for this purpose.49 Harwich further argues that the May 2007 Decision has already addressed the question of whether an IEP may be drafted outside of the IEP Team process.
These arguments are not persuasive that this part of Parent’s claim should be dismissed through res judicata or collateral estoppel. First, the previous decision by Hearing Officer Beron in another matter involved entirely different parties, making that decision irrelevant for purposes of collateral estoppel and res judicata. I also note that although previous BSEA decisions may provide useful guidance in the instant appeal, they are not considered to be precedent.
Second, the May 2007 Decision involved the same parties, but the issue is not identical to that being considered in the instant appeal. The May 2007 Decision involved a partial IEP that was drafted by Harwich outside of the IEP Team process for the purpose of presenting the IEP to the BSEA Hearing Officer and then defending that IEP as appropriate to address Student’s special education needs. In the instant appeal, Harwich drafted the August 28, 2007 IEP outside of the IEP Team process for the presumed purpose of implementing what had been ordered by the Hearing Officer. In addition, in the May 2007 Decision, the Hearing Officer concluded that the development of Harwich’s partial IEP was “procedurally improper,” with the result that Harwich’s argument runs counter to its own interests in seeking to dismiss this claim. See Facts, above, par. 12.
Third, any determination as to the appropriateness of the August 28, 2007 IEP is best made within the context of a compliance hearing regarding the May 2007 Decision. Within that context, a BSEA Hearing Officer can assess Harwich’s argument that the May 2007 Decision provided Harwich with the authority to develop the August 28, 2007 IEP outside of the IEP Team process.
For these reasons, I decline to dismiss the merits of the August 28, 2007 IEP claims under res judicata or collateral estoppel.
FAPE and reimbursement claims . Parent’s claim regarding Harwich’s alleged failure to provide Student with FAPE in September 2007 and Parent’s related claim for reimbursement for expenses of her private placement at Auburndale for the 2007-2008 school year as a result of the alleged FAPE denial are described above in paragraphs 7 and 8 of Part IV. These claims are not subject to res judicata or collateral estoppel and may not be dismissed through this Ruling because they reflect issues subsequent to and not considered in the May 2007 Decision.
Harwich’s Motion to Dismiss seeks to dismiss Hearing Request issue numbered 17, which seeks reimbursement for Parents’ private placement of Student at Auburndale for the 2007-2008 school year. The May 2007 Decision determined Auburndale to be inappropriate only with respect to the 2006-2007 school year. Auburndale’s appropriateness for the 2007-2008 school year is a separate and subsequent issue although obviously related to the issue of appropriateness for the previous school year. Parent must be given an opportunity to demonstrate substantive differences between the inappropriateness of Auburndale for the 2006-2007 school year, as determined in the May 2007 Decision, and its appropriateness for the 2007-2008 school year.
For these reasons, the FAPE and reimbursement claims are not subject to dismissal pursuant to res judicata or collateral estoppel.
Conclusion . Harwich’s Motion to Dismiss will be allowed with respect to the claim described above in paragraph 1 of Part IV of the instant Ruling, and this claim will be dismissed. Harwich’s Motion to Dismiss will be denied with respect to Parent’s remaining claims, which are described above in paragraphs 2 through 8 of Part IV of the instant Ruling.
C. Supplemental Motion to Dismiss
For purposes of Harwich’s Supplemental Motion to Dismiss , I now consider whether any of Parent’s remaining claims (described above in paragraphs 2 through 8 of Part IV of the instant Ruling) should be dismissed.
By letter dated January 9, 2008, Parent withdrew her request that the BSEA make a new determination regarding current eligibility under Section 504. Parent’s letter explained her withdrawal of her claim and provided clarification regarding other claims as follows:
I do not seek to have the BSEA adjudicate whether [Student] currently meets the criteria for identification as a handicapped child under the Rehabilitation At of 1973. I do not seek a 504 accommodation plan for him.
I also wish to clarify that all requests for relief in my complaint are in reference to past events. I do not seek to have the BSEA identify what constitutes FAPE going forward for [Student] and do not seek to have the BSEA order Harwich to implement any future education plans. I seek only to have the BSEA adjudicate whether Harwich offered [Student] FAPE in the period following the May 22, 2007 BSEA decision #06-4721 and if not whether I am entitled to any relief. . . .
I believe that approval of [Parent’s request to withdraw her Section 504 claim] would eliminate any need for further evaluation of [Student] at this time.
In light of this modification and clarification, I notified the parties that the withdrawn claim would not be further considered and that I would rule on Parent’s Hearing Request as clarified by Parent. I further notified Harwich that it may file a supplemental motion or response in light of the withdrawal and clarification. Harwich took this opportunity to file a Supplemental Motion to Dismiss , seeking dismissal of all remaining claims principally on the ground that Parent is not seeking any relief that can be provided to her by the BSEA.
In Parent’s Hearing Request , her prayers for relief include many requested findings by the BSEA.50 However, the only remaining substantive relief requested by Parent is reimbursement for “all expenditures” (which presumably means tuition and related expenses) relative to Parents’ unilateral placement of their son at Auburndale in September 2007.51
As a general rule, if the parents of a disabled student enroll their son or daughter in a private school without the consent of or referral by the school district, as is the case in the instant dispute, a BSEA Hearing Officer may require the school district to reimburse the parents for the cost of that enrollment only if the Hearing Officer finds both that (1) the school district had not made a free appropriate public education (FAPE) available to the student in a timely manner prior to that enrollment and (2) the private school placement was appropriate.52
For the following reasons, I find that Parent has stated a claim under this legal standard. The May 2007 Decision established Student’s eligibility under special education law. Pursuant to this eligibility, Harwich had an obligation to offer Student FAPE. Parent claims that at the time of the commencement of the 2007-2008 school year, Student did not have an appropriate IEP from Harwich, and therefore Harwich did not make FAPE available to Student at this time. Parent further claims that Auburndale is an appropriate placement to address Student’s needs based on his disability, which Parent characterizes as autism.
Harwich is correct that Parent takes positions that are inconsistent with her claim for reimbursement. For example, Parent takes the position that her son has not been found eligible to receive special education services, and Parent does not seek a new determination of eligibility. Parent’s claim for reimbursement is contradicted by this position since eligibility is a necessary component to reimbursement.
As discussed above in part VB of the instant Ruling, I am required to deny Harwich’s Supplemental Motion to Dismiss if Parent’s Hearing Request would support relief on any theory of law. The May 2007 Decision did establish Student’s eligibility notwithstanding Parent’s arguments to the contrary. On the basis of this eligibility, Harwich was responsible to provide FAPE, and within this context, Parent’s claims regarding a denial of FAPE and appropriate placement at Auburndale provide a viable legal theory to support her request for relief.
Based on Parent’s clarification of her Hearing Request as quoted above, Harwich also points out, correctly, that Parent does not seek to have the BSEA identify what constitutes FAPE going forward for Student and does not seek to have the BSEA order Harwich to implement any future education plans. Harwich argues that this position precludes Parent’s requested relief of tuition reimbursement.
Parent’s response to this argument seems paradoxical. She takes the position (in her opposition to Harwich’s Supplemental Motion to Dismiss at pages 7-9) that she will not allow her son to return to the Harwich Public Schools until Harwich offers FAPE. Parent seeks a determination from the BSEA that Harwich did not offer FAPE subsequent to (and in accordance with) the May 2007 Decision, but Parent then explains that Student should return to Harwich as a regular education student who would only then be considered for Section 504 eligibility and possibly special education eligibility. At the same time, Parent’s clarification letter of January 8, 2008 has foreclosed Harwich’s efforts to re-start a process for evaluating Student so that Harwich may take a fresh look at Student’s disabilities and eligibility for services, and so that, ultimately, Student may return to the Harwich Public Schools for the 2008-2009 school year with any needed special educational services and accommodations.
Although I find Parent’s positions to be perplexing and perhaps even self-defeating, she has remained clear that she seeks a BSEA determination that Harwich did not offer FAPE to her son subsequent to the May 2007 Decision, and as a result, she and her husband placed their son in an appropriate private school for which she now seeks tuition reimbursement. This, in combination with the Hearing Officer Beron’s determination of special education eligibility, is sufficient to state a viable claim pursuant to the above-described legal standard for tuition reimbursement and thereby avoid dismissal at this juncture of the proceedings.53
Accordingly, Harwich’s Supplemental Motion to Dismiss will be denied.
D. Motion to Compel
Parent filed a Motion to Compel Harwich Public Schools to Comply with 34 CFR Section 300.508(e) LEA Response to a Due Process Complaint ( Motion to Compel) for the purpose of requiring Harwich to provide additional information in response to her Hearing Request . Parent argues that, although Harwich filed a response to her Hearing Request , the response improperly failed to respond to six claims identified in Parent’s Hearing Request . For this purpose, Parent relies upon regulations under the IDEA found at 34 CFR 300.508(e) .54
These regulations provide as follows:
LEA response to a due process complaint .
(1) If the LEA has not sent a prior written notice under §300.503 to the parent regarding the subject matter contained in the parent’s due process complaint, the LEA must, within 10 days of receiving the due process complaint, send to the parent a response that includes–
(i) An explanation of why the agency proposed or refused to take the action raised in the due process complaint;
(ii) A description of other options that the IEP Team considered and the reasons why those options were rejected;
(iii) A description of each evaluation procedure, assessment, record, or report the agency used as the basis for the proposed or refused action; and
(iv) A description of the other factors that are relevant to the agency’s proposed or refused action.
(2) A response by an LEA under paragraph (e)(1) of this section shall not be construed to preclude the LEA from asserting that the parent’s due process complaint was insufficient, where appropriate.
The term “due process complaint,” as used within the above-quoted regulations, refers to Parent’s Hearing Request . It is undisputed that Harwich has not sent Parent a “prior written notice.” Therefore, Harwich is required to comply with 34 CFR 300.508(e).
Specifically, Parent contends that Harwich’s response to her Hearing Request has not responded to the following six subject matters referenced in her Hearing Request :
1. The August 28, 2007 IEP.
2. The currently proposed placement in the 8 th grade resource room.
3. The proposed placement in the general education program at Harwich Middle School, as set forth within a letter dated July 30, 2007 from Mr. Teso to Parents.
4. The alleged identification of Student as a special education student in September 2006.
5. The IEP proposed for Student in September 2006.
6. The proposed placement at a private residential special education school in September 2006.
With respect to these subject matters, Parent seeks to obtain an “ explanation of why the agency proposed or refused to take the action raised in the due process complaint” and a “description of each evaluation procedure, assessment, record, or report the agency used as the basis for the proposed or refused action,” as contemplated by the above-quoted federal regulations.
After reviewing Parent’s Hearing Request , Harwich’s written response to that Hearing Request (including nine attachments), and the written and oral arguments of the parties, I reach the following conclusions.
Through its response to the Hearing Request and its written opposition to the Motion to Compel , Harwich has explained to Parent the bases of its decisions to propose the August 28, 2007 IEP, including the IEP’s proposed placement of Student in the 8 th grade resource room. No further response is necessary regarding the above-referenced subject matters numbered 1 and 2.
Through Mr. Teso’s letter to Parents dated July 30, 2007, together with Harwich’s opposition to the Motion to Compel and its response to the Hearing Request , Harwich has explained to Parent the bases for its proposed placement in the general education program at Harwich Middle School. No further response is necessary regarding the above-referenced subject matter numbered 3.
Harwich has not sought to respond substantively to the above-referenced subject matters numbered 4, 5, and 6. Instead, Harwich takes the position that it need not respond because (1) each of these matters occurred prior to the February 2007 hearing in the previous dispute between the parties, (2) each of these matters was or could have been litigated and decided as part of the previous dispute, and (3) Harwich has filed a Motion to Dismiss regarding each of these subject matters.
Parent is correct that Harwich’s rationale for not responding to the three subject matters (numbered 4, 5, 6) is insufficient. The federal regulations (quoted above) allow a school district to avoid making a response for only one reason (i.e., when a prior written notice was provided), which is inapplicable to the present dispute.55
Nevertheless, for the following reasons, I decline to require Harwich to respond further to Parent’s Hearing Request . The three subject matters (numbered 4, 5, 6) are not claims made against Harwich. Rather, as Parent makes clear in her letter of January 15, 2008, she seeks a response from Harwich with respect to these three subject matters in order to answer her questions related to her claim that the August 28, 2007 IEP is not appropriate. She also seeks this information to answer her questions regarding the proposed placement described in Mr. Teso’s letter of July 30, 2007.
As explained above, Harwich has already provided a sufficient response regarding the August 28, 2007 IEP and the proposed placement described in Mr. Teso’s letter of July 30, 2007. The additional information sought by Parent may, possibly, be available to her through formal or informal discovery, but Harwich is not required to provide the requested information through its response to Parent’s Hearing Request .
Parent’s Motion to Compel will be denied for these reasons.
E. Motion to Strike
Harwich has filed a Motion to Strike , seeking to remove from the administrative record Mother’s letter to the Hearing Officer, dated December 30, 2007, and Father’s affidavit, also dated December 30, 2007. Father has since filed an amended affidavit, which corrects the date from which he has had no involvement in the dispute before the BSEA.
Although the BSEA Hearing Rules do not address a motion to strike, the Massachusetts Standard Adjudicatory Rules of Practice and Procedure, which are applicable to BSEA proceedings, provide as follows:
Motion to Strike. A Party may move to strike from any pleading, or the Agency or Presiding Officer may on its own motion strike, any insufficient allegation or defense, or any redundant, immaterial, impertinent or scandalous matter.56
Harwich’s Motion to Strike seeks to remove from the record the entirety of Parent’s December 30, 2007 letter but focuses, in particular, on several points. In the letter, Parent takes the position that one of the Harwich attorneys is knowingly misrepresenting a fact to the BSEA in the present appeal and also references Parent’s previous allegation that Harwich’s other attorney made the same misrepresentation of fact to the BSEA in the earlier appeal before Hearing Officer Beron.57 Harwich’s attorney has responded that Parent has mischaracterized what she has written.
Parent’s letter of December 30, 2007 is intended to respond to Harwich’s response to Parent’s opposition to Harwich’s Motion to Dismiss . For this purpose, the letter includes substantive argument as to why the Motion to Dismiss should be denied. Parent’s claim of misrepresentation is part of that argument, and, accordingly, I decline to strike it from the record.
Parent’s December 30, 2007 letter also references a Board of Bar Overseers complaint. The referenced Board of Bar Overseers complaint is immaterial to the present appeal before the BSEA and should be stricken from the record.
Harwich has also filed its Motion to Strike for the purpose of removing from the administrative record Father’s affidavit, which Parent (Mother) submitted in support of the position that Father is not, in any way, participating in the present dispute before the BSEA. Parent subsequently filed an amended affidavit for the purpose of correcting a date in the affidavit.
Harwich seeks to attack the truthfulness of several parts of the affidavit. I see no need to determine the precise accuracy of each portion of the affidavit. It is sufficient that the affidavit makes clear, and Harwich does not dispute, that Father has not participated and is not participating in Parent’s BSEA appeal. This is the point of the affidavit, and I consider it only for this purpose. Accordingly, I find no basis to strike the affidavit from the record.
Harwich’s Motion to Strike will be allowed with respect to the references to a Board of Bar Overseers complaint in the December 30, 2007 letter, and will be denied in all other respects.
F. Motion to Compel Admission
Parent filed a Motion to Compel Admission for the purpose of requiring Ms. Ehrens, who is one of Harwich’s attorneys, to make an admission regarding the meaning of a phrase she used in her memorandum filed with the BSEA in support of Harwich’s Motion to Dismiss .
Specifically, through her Motion , Parent seeks to obtain an admission that the phrase “eligible for services,” as used within the memorandum, is synonymous with the phrase “eligible for special education services.” Parent explains that this requested admission pertains to the parties’ dispute as to whether Student has been identified by Harwich as a special education student.
For the following reasons, I decline to allow Parent’s Motion to Compel Admission .
First, within the BSEA Hearing Rules or the Massachusetts Standard Adjudicatory Rules of Practice and Procedure that govern BSEA proceedings, there is no provision for a motion to require an attorney to admit to the meaning of what she stated within a legal memorandum. Second, through the instant Ruling, I have ruled on the issue of whether Student is currently eligible for special education services and, in so doing, I have also addressed the question of whether Student has been identified by Harwich as a special education student. See Part III “Facts” pars. 4, 5; and Part VB “Eligibility claim.” Third, the May 2007 Decision has addressed the question of whether Harwich has identified Student as eligible for special education services.
G. Motion to Compel That Both Attorneys Sign All Documents
Through her Motion to Compel That Both Attorneys Sign All Documents , Parent seeks an order requiring both of Harwich’s attorneys to sign all documents filed by Harwich at the BSEA. Parent asks that this be required retroactively and prospectively, with the result that both attorneys would have to sign all documents previously filed with the BSEA, as well as all documents to be filed in the future, in the instant appeal. In support of this Motion, Parent argues that this is necessary in order to ensure that “there is agreement between the two attorneys in defining Harwich’s positions on the varied issues.”
For the reasons explained in Harwich’s opposition to this Motion , I find that it is unnecessary and it would be unwarranted to allow Parent’s request. In the event that Parent believes that there is a specific instance of inconsistency of position, she may cite to it and make arguments based upon it relative to the particular issue being addressed.
Accordingly, Parent’s Motion to Compel That Both Attorneys Sign All Documents will be denied.
VI. ORDER
Harwich’s Motion to Dismiss is allowed with respect to the claim described in paragraph 1 of Part IV (entitled “Parent’s Claims”) of this Ruling. This claim is therefore dismissed . Harwich’s Motion to Dismiss is denied with respect to all of Parent’s remaining claims, which are described above in paragraphs 2 through 8 of Part IV of the instant Ruling.
Harwich’s Supplemental Motion to Dismiss is denied .
Parent’s Motion to Compel Harwich Public Schools to Comply with 34 CFR Section 300.508(e) LEA Response to a Due Process Complaint is denied .
Harwich’s Motion to Strike is allowed with respect to those parts of Parent’s letter to the Hearing Officer, dated December 30, 2007, that make reference to a Board of Bar Overseers complaint. In all other respects, the Motion to Strike is denied .
Parent’s Motion to Compel Admission is denied .
Parent’s Motion to Compel That Both Attorneys Sign All Documents is denied .
The evidentiary Hearing will proceed, as previously scheduled, on March 3 and 4, 2008 to address all claims described above in paragraphs 2 through 8 of Part IV of the instant Ruling.
By the Hearing Officer,
_________________
William Crane
Date: February 1, 2008
1
Marshall is a pseudonym used for confidentiality and classification purposes in publicly available documents.
2
“Parent” refers to Student’s mother. Although both parents are involved in Student’s education, it is only Student’s mother who has filed the Hearing Request . Student’s father is not involved in this appeal. See amended affidavit of Father.
3
“Auburndale School” is a pseudonym used for confidentiality and classification purposes in publicly available documents.
4
Parent is pro se. Harwich is represented by attorneys Mary Ellen Sowyrda and Doris Mackenzie Ehrens.
5
The May 2007 Decision, entitled In Re: Marshall v Harwich Public Schools , 13 MSER 188 (SEA MA 2007), may be found at the BSEA’s website: http://www.doe.mass.edu/bsea/decisions/06-4721.doc
6
This statement of facts is prepared principally in order to rule on Harwich’s Motion to Dismiss and its Supplemental Motion to Dismiss . For this purpose, I consider the factual allegations in the Hearing Request to be true, as well as all reasonable inferences in Parent’s favor, with one exception. As noted in the text above, a significant part of the current dispute pertains to the content and implications of the May 2007 Decision. Where Parent, in her Hearing Request , has made allegations as to what was determined in the May 2007 Decision, I will not automatically consider these allegations to be true, but instead will make an independent determination based upon my reading of that Decision and the arguments of the parties.
7
Hearing Request at page 23; May 2007 Decision, par. 1 at page 2, par. 68 at page 24.
8
Hearing Request at page 8.
9
Id. at pages 4, 23; May 2007 Decision, par. 36 at page 16, par. 43 at page 18.
10
May 2007 Decision, par. 10 at page 6, par. 29 at page 14, par. 43 at page 18.
11
Id., par. 56, at page 22.
12
Id., par. 60, at page 22.
13
Id. at page 1.
14
Id. at pages 2, 26.
15
Id. at page 31.
16
The phrase “IEP established eligibility” appeared in the following context at page 32 of the May 2007 Decision:
Even though the IEP established eligibility Parents strongly feel that that eligibility should have been established through a TEAM process only. However, the IDEA does not preclude resolution through negotiation. In fact, the IDEA anticipates that matters, including a student’s placement, may be resolved through mediation, or a resolution session or other proceeding prior to hearing. Father, an attorney, freely engaged in negotiation throughout the process with Harwich’s attorney, including mutual drafting of release of information, negotiations through discovery and offers of settlement prior to the settlement conference. Therefore Parents should not have been surprised that Harwich’s Counsel might also seek resolution of the hearing issues through a settlement agreement.
17
Id. at pages 28-30.
18
Id. at page 30.
19
Id. at page 34.
20
Id. at pages 28, 29, 30, 34.
21
Id. at page 33.
22
Id. at page 31.
23
Id. at pages 33-34.
24
Hearing Request at page 5.
25
Id.
26
20 USC 1400 et seq .
27
MGL c. 71B.
28
20 USC 1400(d)(1)(A). See also 20 USC 1412(a)(1)(A); MGL c. 71B, ss. 2, 3.
29
MGL c. 71B, s. 3.
30
Honig v. Doe, 484 U.S. 305, 311 (1988).
31
603 CMR 28.02(9) (emphasis supplied). MGL c. 71B, s. 1 provides similar language within its definition of a “school age child with a disability”.
32
29 USC 794(a).
33
34 CFR 104.3(j).
34
Allen v. McCurry , 449 U.S. 90, 94 (1980); In Re Sonus Networks, Inc., Shareholder Derivative Litigation , 499 F.3d 47, 56-57 (1 st Cir. 2007) ; Kobrin v. Board of Registration in Medicine , 444 Mass. 837, 843 ( 2005); In Re: Neville & Sutton Public Schools , BSEA #07-7534 (Ruling dated November 2, 2007).
35
Gonzalez-Pina v. Rodriguez , 407 F.3d 425, 429 (1 st Cir. 2005); Breneman v. U.S. ex rel. F.A.A. , 381 F.3d 33, 38 (1 st Cir. 2004 ).
36
With respect to the parties in this appeal as compared to the previous appeal before Hearing Officer Beron, the School District (Harwich) is the same, the Student is the same, and Mother is the same. Father joined Mother in bringing the earlier action, but did not join Mother in the present appeal. It is not disputed that this does not reflect a substantive difference in the parties.
37
Breneman v. U.S. ex rel. F.A.A. , 381 F.3d 33, 38 (1 st Cir. 2004 ); Gonzalez v. Banco Cent. Corp . , 27 F.3d 751, 755 (1 st Cir. 1994).
38
Apparel Art Int’l, Inc. v. Amertex Enters., Ltd ., 48 F.3d 576, 583 (1st Cir.1995). See also AVX Corp. v. Cabot Corp ., 424 F.3d 28, 31 (1st Cir.2005).
39
Allen v. McCurry , 449 U.S. 90, 94 (1980); In Re Sonus Networks, Inc., Shareholder Derivative Litigation , 499 F.3d 47, 56-57 (1 st Cir. 2007) ; Gonzalez-Pina v. Rodriguez , 407 F.3d 425, 429 (1 st Cir. 2005); Kobrin v. Board of Registration in Medicine , 444 Mass. 837, 843-44 ( 2005).
40
See Kobrin v. Board of Registration in Medicine , 444 Mass. 837, 844 ( 2005) ( “final order of an administrative agency in an adjudicatory proceeding … precludes relitigation of the same issues between the same parties, just as would a final judgment of a court of competent jurisdiction”).
41
Allen v. McCurry , 449 U.S. 90, 94 (1980).
42
BSEA Rule 17B; 801 CMR 1.01(7)(g)3.
43
Judge v. City of Lowell , 160 F.3d 67, 72 (1st Cir. 1998) (quoting Conley v.Gibson , 355 U.S. 41, 45-46 (1957)).
44
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).
45
May 2007 Decision at 34.
46
Hearing Request at page 23.
47
Parent cites to 603 CMR 28.05(2)(a)1(i), which reads as follows:
Consistent with state and federal special education law, the Team shall establish whether a student has a disability(ies) as defined in 603 CMR 28.02(7), determine the type(s) of disability(ies) and shall ensure that the student’s inability to progress is a result of the disability(ies) and not a result of an inability to meet the school discipline code, limited English proficiency, social maladjustment, or lack of instruction in reading or math.
48
Parent’s letter to the Hearing Officer dated December 30, 2007, page 1 (emphasis in original).
49
See In Re: Henry v. Everett Public Schools , BSEA # 06-2597 at page 4, n. 11 (2/15/07).
50
For example, Parent’s Hearing Request sought findings by the BSEA that Harwich’s August 28, 2007 IEP violated the IDEA, that Harwich denied Student FAPE because it did not have an IEP or Section 504 plan for Student at the start of the 2007-2008 school year, and that Harwich failed to comply with the May 2007 Decision.
51
Hearing Request , par. ixx at page 29. The Hearing Request also includes a request that Harwich be ordered to develop a Section 504 plan, but Parent’s January 9, 2008 letter withdrew this claim.
52
20 USC 1412 (a)(10)(C)(ii); Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, 370, 373-74 (1985).
53
In its Supplemental Motion to Dismiss (discussed below), Harwich also argues, at page 3, n. 3, that its response to the Hearing Request (and, in particular, the exhibits attached to Harwich’s response) demonstrates compliance with the May 2007 Decision. It is sufficient to note that there remains a significant factual dispute with respect to Harwich’s argument, as demonstrated by Parent in her opposition to the Supplemental Motion to Dismiss . Parent’s compliance claims remain viable at this juncture of the proceedings.
54
The IDEA includes similar language. 20 USC 1415(c)(2)(B)(i)(I)(aa)-(dd).
55
See Sykes v. District of Columbia , 518 F.Supp.2d 261, 267 (DDC 2007) ( court rejects school district’s position that it may make a response of its choosing despite clear statutory language in the IDEA).
56
801 CMR 1.01(7)(c). Similarly, Federal Rule of Civil Procedure 12(f) provides: “ The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.”
57
The alleged misrepresentation of fact, as stated in the December 30, 2007 letter, is as follows: Harwich’s attorney “is knowingly misrepresenting fact to the BSEA when she writes that [Student] is already identified as eligible for special education.”