COMMONWEALTH OF MASSACHUSETTS
Bureau of Special Education Appeals
In Re: Masconomet Regional School District & Middleton Public Schools BSEA #07-7324
Ruling on the Motion of Middleton Public Schools to Dismiss
This matter comes before the BSEA on the Motion of the Middleton Public Schools to Dismiss the Complaint filed against it by the Masconomet Regional School District. A Hearing was held on the Motion on November 14, 2007, at the offices of Catuogno Reporting Service in Worcester. After careful consideration of the undisputed facts and the parties’ thoughtful arguments in support of their respective positions, I find that Masconomet’s Third Party Complaint Fails to State a Claim Upon Which Relief could be GRANTED by the BSEA and, therefore, that Middleton should be dismissed as a party to this appeal.
Procedural Background
1. Middleton Public School is a K-6 school district. Upon completion of 6 th grade all Middleton students transition to the Masconomet Regional School District. In most instances, including under the facts presented here, Masconomet Regional School District assumes full programmatic and fiscal responsibility for its incoming 7 th grade students on September 1 st of each year.
2. The Student attended the Middleton Public School during the 2006-2007 school year and completed the 6 th grade. During the spring 2007, a series of Team meetings were held to discuss the Student’s progress and programming. The Director of Special Education for Masconomet Regional Schools, Debra Bromfield, attended at least one of the Team meetings. On May 31, 2007 Middleton proposed an IEP covering the period January 2007 to January 2008 which outlined the special education services the Student would receive in the 7 th grade through the Masconomet Regional School District.
3. On June 5, 2007, the Parents filed a request for hearing at the BSEA. The hearing request sought compensatory services allegedly due to the Student for denial of FAPE while the Student attended Middleton Public Schools. It also requested a finding that the services and placement available at Masconomet would not provide a free, appropriate public education to the Student, and an Order that Masconomet develop an IEP, and provide funding, for the Student’s placement at the Landmark School. The initial hearing request named only Masconomet as a party.
4. The Parents rejected the proposed 2007-2008 IEP on June 14, 2007.
5. On June 19, 2007, Masconomet filed a Motion to Dismiss asserting that the Student did not become the responsibility of the Masconomet Regional School District until September 1, 2007, and therefore that the request for hearing was premature. The Motion was denied on July 3, 2007.
6. On June 20, 2007, Middleton Public Schools requested clarification of its status as it had not been formally named as a party in the Parents’ appeal. On July 30, 2007, the Bureau determined that Middleton was an indispensable party on and issued recalculated due process timelines to permit Middleton to file a formal response to the Parents’ claims.
7. Masconomet convened its own Team meeting on September 5, 2007, and proposed an IEP to the Parents on September 6, 2007.
8. Representatives of both Masconomet Regional School District and Middleton Public Schools attended a prehearing conference on September 6, 2007. The Parents withdrew all their claims for compensatory relief against Middleton Public Schools electing to proceed solely against Masconomet for an appropriate special education placement during the 2007-2008 school year.
9. On September 28, 2007, Masconomet filed a Motion for Leave to File a Third Party Complaint against Middleton, which was GRANTED as the BSEA processes hearing requests administratively without prior screening for substantive or jurisdictional support. Masconomet’s Third Party Hearing Request states:
A. Should the BSEA Hearing Officer find that Masconomet’s proposed IEP is not appropriate and/or Masconomet’s implementation of Middleton’s revised IEP would not have been appropriate for the Student, and the Parents’ placement of their son at Landmark is appropriate, and further, determine that the parents are entitled to reimbursement from Masconomet for the Student’s placement at Landmark School, Masconomet maintains that, under these circumstances, the Student’s need for a more restrictive, out-of-district day placement at Landmark is a direct and proximate result of the Student’s lack of effective progress in the Middleton Public Schools and Middleton’s failure to provide the Student with FAPE (or, conversely had the Student made effective progress and been provided with FAPE by Middleton, he would not need to be at Landmark);
B. Therefore, if there is a finding that Masconomet is liable to the Parents, such liability results not from Masconomet’s own actions but from the actions and/or inactions of Middleton; and
C. Under these circumstances, it would be fundamentally unfair, unjust, and inequitable to hold Masconomet responsible for Middleton’s failure to provide the Student with FAPE.
10. Middleton filed the instant Motion to Dismiss Masconomet’s Third Party Complaint on October 5, 2007. Middleton argued that it should be dismissed as a party to this appeal because the Parents are not seeking any relief for which it could be held responsible and the fiscal relationship between Middleton Public Schools and the Masconomet Regional School District is entirely and strictly governed by a memorandum of understanding. The memorandum provides for a complete transfer of programmatic and fiscal responsibility for nearly all students entering the 7 th grade on September 1 st of the year. The memorandum does not provide for any type or mechanism of shifting liability between the two school districts, other than age/grade progression.
Discussion
In accordance with federal and state special education statutes and regulations, the Massachusetts Bureau of Special Education Appeals has jurisdiction to hear and resolve disputes “at any time on any matter” concerning the provision of special education and the procedural protections of the IDEA, Section 504 of the Rehabilitation Act, and M. G. L. c. 71B. 603 CMR 28.08 (3)(a). Here Masconomet would have the Bureau extend its reach beyond managing disputes that are directly tied to the delivery of educational services to eligible students, to determining retroactive fiscal responsibility and substantive relationships between successive school districts. Masconomet contends that it is in a position similar to a tort victim: but for the sending school district, Middleton’s, failure to ensure that the Student received a free, appropriate public education, resulting in special education needs sufficiently severe to warrant specialized out-of-district programming, Masconomet would not be “liable” for the Student’s placement in a private school. It is an intriguing, though imperfect analogy. First, taken to its logical conclusion, permitting school districts to seek reimbursement from another entity that may have “caused” a student’s disability could result in entanglement in claims far removed from education: e.g., motor vehicle negligence, toxic exposure, medical malpractice, etc. Even if such claims were reasonable, relief would be nearly impossible to calculate. Furthermore when, as here, the Regional School District and the K-6 school district draw their funds largely from the same set of taxpayers, “reimbursement” of funds obtained through litigation from one district to another could be characterized as inefficient, at best. More important, however, there is no apparent precedent, nor could I uncover any reasonable legal support, for Masconomet’s potential claim against Middleton. Instead I found the following:
The protections of the IDEA and M. G. L. c. 71B run to the Student. School districts are programmatically and fiscally responsible for the education of a student based on the student’s residence and enrollment in the district. 603 CMR 28.01(i) Neither the federal nor the state special education statutes and regulations anticipate that one school district would assert liability against another for providing, or failing to provide, a free, appropriate public education in circumstances similar to those set out here. Inter-district disputes concerning responsibility for providing a free, appropriate public education when the student’s residency is in question are the exception to the rule that the Bureau’s jurisdiction reaches controversies concerning the student’s right to a free, appropriate public education. Massachusetts created a clearly limited adjunct process overseen by the BSEA to resolve the competing claims of responsibility, or more often claims of lack of responsibility, by multiple school districts based on the student’s residence. This process occurs entirely apart from any determination of the relative merits of the special education programs in which the student at issue had participated or would participate. 603 CMR 28.10 (9) There are no relevant statutory or regulatory sections addressing apportionment of responsibility for special education among school districts independent of broad questions of residency. Here, there is no dispute that the Student is a resident of a town entitling him to educational services first through the Middleton Public School and then the Masconomet Regional School District. Nor is there any dispute that Masconomet became entirely programmatically and fiscally responsible for the Student’s special education program on September 1, 2007. Therefore the residency analogy is not particularly helpful to Masconomet.
To the extent that Masconomet’s claim against Middleton could be grounded in common law, rather than derived from the statutes and regulations pertinent to special education disputes, it could best be characterized as a claim for “educational malpractice”. There is, however, no judicial precedent for the assertion by one school district of an educational malpractice claim against another school district. It is not at all clear that a school district could have standing to assert such a claim. Furthermore, where assertions of educational malpractice have been considered in the context of special education disputes between parents and school districts, courts have uniformly rejected such claims as inconsistent with the IDEA’s comprehensive substantive and procedural regulation of rights, responsibilities and due process protections for students with disabilities. See: Nieves-Marquez v. Commonwealth of Puerto Rico , 353 F. 3d. 108 (1 st Cir. 2003) (“we conclude that tort like money damages, as opposed to compensatory equitable relief, are not available under the IDEA”) Accord : Cassandra O. v. Bibb County School District , 397 F. 3d. 1321 (11 th Cir. 2005); Andrew S. v. School Committee of Greenfield , 59 F. Supp. 2 nd 237 (D. Mass. 1999); Sellers v. School Board of Manassas, VA. , 141 F. 3 rd 524 (4 th Cir. 1998); DOE v. Town of Framingham , 965 F. Supp. 226 (D. Mass. 1997). It is highly unlikely that a court would permit a school district to do what a parent cannot do. At best, drawing on common law, a school district is likely to be seen as “strictly liable” for the current educational programming and costs of its resident students. This is the analytical and practical model chosen by the drafters of the Massachusetts special education statute and regulations.
Finally, the fiscal relationship between Middleton Public School and Masconomet Regional School District, two publicly created entities serving and funded by the same taxpayers, is governed by a Memorandum of Understanding. There was no showing that this Memorandum addressed the type of reimbursement claim advanced by Masconomet in this case, nor that there was any mechanism under that Memorandum for handling or assigning disputes between the parties that fall outside of the circumstances set out in the Memorandum. To the extent that Masconomet is seeking reimbursement in accordance with, or in the absence of, the specific terms of that Memorandum, Masconomet’s claims may be one of public contract law, rather than the special education law committed to the Bureau’s limited jurisdiction.
Conclusion
Based on the discussion above I find that Masconomet’s claim for Third Party Reimbursement from Middleton Public Schools for any potential cost arising out of this Student’s unilateral placement in a private, out-of-district, special education school is not one for which the Bureau of Special Education Appeals may fashion appropriate relief. Under current residency rules, as well as the Memorandum of Understanding between Middleton and Masconomet, Masconomet is solely responsible for developing, providing and funding an appropriate special education program for this Student for the 2007-2008 school year. Therefore, the Motion of the Middleton Public School District to Dismiss the Third Party Complaint of the Masconomet Regional School District pursuant to BSEA Hearing Rule VII and 801 CMR 1.01(7) is GRANTED.
By the Hearing Officer,
Lindsay Byrne
November 27, 2007