Massachusetts Department of Education – BSEA #03-1785

COMMONWEALTH OF MASSACHUSETTS

SPECIAL EDUCATION APPEALS

In Re: Massachusetts Department of Education¹

BSEA # 03-1785

RULING ON THE DEPARTMENT OF EDUCATION’S MOTION TO DISMISS

This Ruling is issued pursuant to 20 USC 1400 et seq . (Individuals with Disabilities Education Act), 29 USC 794 (Section 504 of the Rehabilitation Act), MGL chs. 30A (state administrative procedure act) and 71B (state special education law), and the regulations promulgated under said statutes.

Introduction

On October 9, 2002, Student (through her attorney) filed a Request for Hearing alleging that she was being denied a free appropriate education (FAPE) by the Massachusetts Department of Education (DOE). On October 17, 2002, DOE filed a Motion to Dismiss , taking the position that the Request for Hearing should be dismissed with prejudice.

By agreement of the parties, Student’s response to the Motion to Dismiss was delayed until December 10, 2002 when she filed her opposition. On December 12, 2002, DOE filed a response to Student’s opposition, and on December 13, 2002 a telephonic Hearing was held on the Motion . The Hearing Officer kept the record open until December 20, 2002 so that the parties would have additional time to file citations to additional legal authority in support of their arguments, specifically with respect to the question of whether the federal special education statute may impose an obligation on DOE to provide Student with an appropriate education. Both parties filed citations to additional legal authority on December 20, 2002.

Student’s claims and DOE’s response

Student seeks compensatory education from DOE for the time period February 27, 2002 (when Student left Taunton State Hospital) to November 15, 2002 (when DOE assigned Cohasset as the responsible local education authority or LEA). Student claims that she did not receive a free appropriate public education (FAPE) during that time period, that DOE was responsible for providing (or ensuring that others provided) FAPE, and that DOE may therefore now be held responsible for providing compensatory education services to Student.

In support of its Motion to Dismiss , DOE makes essentially two arguments. First, DOE states that insufficient facts have been alleged which would support a finding that Student was denied FAPE. DOE argues that although Student received only a limited number of hours of academic instruction, these services were provided on a 1:1 basis, and Student had only limited ability and desire to receive academic instruction during the time in question.

Second, DOE argues that even if Student had been denied FAPE, DOE may not be found responsible to provide compensatory services. DOE believes that it acted reasonably and expeditiously to assign a responsible LEA once DOE had sufficient information upon which to act, and therefore may not be faulted for the delay in school district assignment. Moreover, DOE claims that neither DOE in general nor ESIS in particular is responsible for developing and implementing an IEP or providing any special education or related services for which Student may be eligible.

Legal Standard for Consideration of Motion to Dismiss

Consistent with the legal standards applied by Massachusetts and federal courts with respect to a Motion to Dismiss , I will deny the Motion if the Request for Hearing would support relief on any theory of law. Therefore, dismissal is inappropriate unless Student can prove no set of facts in support of her claim. I will consider the allegations in the Request for Hearing to be true, as well as all reasonable inferences in the Student’s favor.²

Findings of Fact

Student is nineteen years old. Since January 2001, she has been hospitalized in Massachusetts because of her psychiatric and cognitive disabilities.

From January 4, 2001 to February 27, 2002, Student was at the Intensive Residential Treatment Program at Taunton State Hospital, receiving 27.5 hours of academic instruction per week through the Tri-County District program of DOE’s Educational Services in Institutional Setting (ESIS).

On February 27, 2002, Student was transferred to Arbor Fuller, a private psychiatric hospital in South Attleboro, MA, where she remained until April 16, 2002. During that time, she received no academic services.

On April 16, 2002, Student was transferred to the Hawthorne Units where she currently resides. The Hawthorne Units are a psychiatric inpatient facility operated by the Mass. Department of Mental Health and located at Tewksbury State Hospital.

Student alleges that while on the Hawthorne Units, the only academic instruction that she has received is the following: 5 hours of 1:1 tutoring per week from May 23 to June 19, 2002; 2 hours of 1:1 tutoring per week from mid-September to October 18, 2002, 4 hours of 1:1 tutoring since October 18, 2002 through the present. DOE has alleged that Student received the following academic instruction: 2 hours of 1:1 tutoring per week until June 18, 2002; and commencing with the new school year, this was increased to 4 hours per week. For purposes of this Ruling, the different versions of what services have been provided is not significant. For purposes of this Ruling, I will assume that Student received the educational services alleged by Student. These academic services have been provided by the East District program of ESIS (a division of DOE), which serves the Hawthorne Units.

Student has not had an Individualized Education Program (IEP) since 1999. The educational services provided since at least January 4, 2001 by ESIS when Student first went to Taunton State Hospital have not been provided pursuant to an IEP. In addition, Student has not had current evaluations for the purpose of determining her special education needs during the time period relevant to this dispute. Student’s request for further evaluation and for the development of an IEP were rejected by ESIS during the time period that Student has been at the Hawthorne Units.

In her Request for Hearing , Student states that she has been without an assigned LEA since 1999. At no time relevant to these proceedings has there been an LEA involved in Student’s education. Student has alleged that without the assignment of an LEA, no LEA could be determined to be responsible for Student’s special education.

DOE assigned Salisbury as the responsible LEA on October 15, 2002. However, DOE has explained that when it assigned Salisbury as the responsible LEA, it did so because of pressure to assign an LEA rather than on the basis of any belief that Salisbury would be providing special education services to Student as the responsible LEA.³ At that time, both parties understood that guardians would likely be appointed soon, which would allow DOE to make an assignment of an LEA which would take responsibility for Student’s special education. Both parties therefore considered the appointment of Salisbury as a temporary, provisional appointment. Immediately after appointment of the two co-guardians, DOE assigned Cohasset as the responsible LEA on November 15, 2002.

Apparently, a principal reason that no LEA had been earlier assigned was uncertainty regarding the whereabouts of Student’s father. Student’s mother has been living in New Hampshire. Although it seemed clear that Student’s father has been living in Massachusetts during the time period in question, neither Student’s attorney nor DOE was able to confirm the father’s actual residence. The uncertainty regarding father’s residence (and therefore the question of which school district should be assigned as the responsible LEA) was not finally resolved until the appointment of a co-guardian (who lives in Cohasset) on or about November 15, 2002.

A reasonable inference from these facts is that during the time period in question of the present dispute (February 27, 2002 until November 15, 2002), no LEA could be identified by DOE or was available to develop an IEP, evaluate Student or provide Student with special education services.

Immediately prior to the time relevant to this dispute, while Student was receiving academic services from DOE (through ESIS) at Taunton State Hospital from January 4, 2002 to February 27, 2002, there was no LEA identified or involved in Student’s education, and this continued to be the case while Student has been at the Hawthorne Units, receiving services from DOE (through ESIS). In a letter dated February 6, 2002, Student’s attorney wrote that ESIS had no current IEP on file, only an “ungraded” plan from Triton Regional High School which expired March 2000, and that no LEA has been identified as responsible for overseeing Student’s educational services. The letter is addressed to Lynn Ducharme (Principal, ESIS/Department of Education, Tri-County District), with a copy indicated to Ann Silver (Program Coordinator of LEA Assignments for DOE) at DOE’s Office of Special Services (OSS).

A reasonable inference from these facts is that at all times relevant to this dispute, DOE was aware that no LEA was identified or otherwise available to provide current evaluations, develop an IEP or provide Student with special education services.

Student and DOE have each submitted an affidavit and various exhibits relevant to various requests made to DOE in order to determine the local education agency (LEA) responsible for Student’s education. Facts not in dispute and relevant to the LEA assignment process are as follows:

On or about February 1, 2002, a Department of Mental Health caseworker completed a form entitled “request for Clarification of School District Assignment” on behalf of Student, and apparently mailed the form to DOE on or before February 7, 2002. DOE did not receive the form until the last week of February or first week of March 2002. The form is utilized to request that DOE assign a school district as responsible for Student’s special education.

On or about July 30, 2002, DOE received from Student’s attorney a second “Request for Clarification of School District Assignment” form. On October 15, 2002, DOE assigned Salisbury as the responsible LEA. The parties understood this assignment to be provisional and temporary as it was anticipated that a full guardianship would soon be ordered by a probate court, resulting in a change of LEA assignment.

On November 15, 2002, DOE received from Student’s attorney a third “Request for Clarification of School District Assignment” form. On November 15, 2002, DOE assigned Cohasset as the responsible LEA. Soon after November 15, 2002, Student sought special education and related services from Cohasset as the responsible LEA.

Discussion

A. Was Student denied FAPE ?

The parties are in agreement that Student is an individual with a disability, falling within the purview of the Individuals with Disabilities Education Act (IDEA)⁴ and the state special education statute.⁵ As such, she is entitled to a free appropriate public education (FAPE).⁶

DOE takes the position that the admitted lack of any IEP since 1999 does not necessarily mean that Student was denied FAPE. Stating that the IEP is essentially a written plan, as compared to the educational services which are actually provided, DOE seeks to distinguish the IEP from FAPE and to minimize the importance of the IEP.

DOE cites no legal authority or guideline in support of its position. There is considerable legal authority and guidance (including guidelines from the United States and Massachusetts Departments of Education) which make clear the central importance of the IEP to the provision of an adequate special education.

I note at the outset that in its definition of FAPE, the IDEA recognizes the central role of the IEP in the provision of FAPE:

The term “free appropriate public education” means special education and related services that . . . are provided in conformity with the individualized education program required under section 614(d).⁷

The IEP reflects not only an end result of the requisite educational services that are to be provided to a student, but also a participatory process essential to achieving that result. In several of its decisions, the First Circuit Court of Appeals has made clear the primary role of the IEP for this purpose. The Court has explained:

The Act [the IDEA] imposes extensive procedural requirements on participating state and local agencies to safeguard a disabled student’s right to a free appropriate public education. 20 U.S.C. §§ 1401(a)(20); 1412(2, 4, 5, 7); 1415(a, b); Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 182-84, 102 S.Ct. 3034, 3038-39, 73 L.Ed.2d 690 (1982). These procedural safeguards “guarantee parents both an opportunity for meaningful input into all decisions affecting their child’s education and the right to seek review of any decisions they think inappropriate.” Honig v. Doe, 484 U.S. 305, 311-12, 108 S.Ct. 592, 598, 98 L.Ed.2d 686 (1987); see also Burlington School Committee v. Mass. Dept. of Ed., 471 U.S. 359, 368, 105 S.Ct. 1996, 2002, 85 L.Ed.2d 385 (1984). The IEP is the primary safeguard , Honig, 484 U.S. at 311, 108 S.Ct. at 597-98; Burlington, 471 U.S. at 368, 105 S.Ct. at 2002; 20 U.S.C. § 1401 (a)(20); 34 CFR § 300.346 (1992); Mass.Gen.L. ch. 71B, § 3, and parents have a right to an “impartial due process hearing” to resolve any complaints about a child’s IEP. 20 U.S.C. § 1415 (b)(2).⁸

The Sixth Circuit Court of Appeals has similarly noted: “Substantive harm occurs when the procedural violations in question seriously infringe upon the parents’ opportunity to participate in the IEP process”.⁹

Guidelines of the United States Department of Education further explain the importance of the IEP and the participatory process used to develop it:

Each public school child who receives special education and related services must have an Individualized Education Program (IEP). Each IEP must be designed for one student and must be a truly individualized document. The IEP creates an opportunity for teachers, parents, school administrators, related services personnel, and students (when appropriate) to work together to improve educational results for children with disabilities. The IEP is the cornerstone of quality education for each child with a disability .¹⁰

The federal Guidelines reinforce this point in its summary (page 16): “The IEP is the cornerstone of special education.”

In addition, a central purpose of the process used to develop the IEP is to ensure that the educational services provided to a student are individualized to meet her unique needs. Current evaluations are essential to this process for the same reasons. The United States Supreme Court has explained the connection between the IEP and FAPE in this regard:

The primary vehicle for implementing these congressional goals is the “individualized educational program” (IEP), which the EHA mandates for each disabled child. . . . The IEP must be reviewed and, where necessary, revised at least once a year in order to ensure that local agencies tailor the statutorily required “free appropriate public education” to each child’s unique needs. § 1414(a)(5).¹¹

The Ninth Circuit Court has further emphasized this point as follows:

Procedural violations that interfere with parental participation in the IEP formulation process undermine the very essence of the IDEA. An IEP which addresses the unique needs of the child cannot be developed if those people who are most familiar with the child’s needs are not involved or fully informed.¹²

In its published guidance regarding FAPE, DOE has similarly explained that the IDEA requires a “focus on the unique needs and strengths of the individual student through the Team evaluation and IEP process”.¹³ It is well settled that special education and related services must be individually tailored to address the unique needs of a student in order for these services to provide FAPE.¹⁴

The First Circuit Court of Appeals has emphasized the importance of the development of the IEP by concluding that compensatory education may be awarded if parents’ opportunity to participate in the formulation process of the IEP has been “seriously hampered”.¹⁵ That much greater is the harm and potential liability for compensatory education when there is no IEP and therefore no participatory process in which parents and student may participate.

On the basis of these legal authorities and guidelines, I find that the IEP (and its procedural development) are inextricably intertwined with FAPE. DOE agrees that Student has been without an IEP since 1999. The failure to have an IEP for Student at all times relevant to this dispute is itself sufficient for me to conclude that Student has been denied her most basic rights under federal and state special education law and, more specifically, that Student has been denied FAPE during all times relevant to the present dispute.

In addition to the denial of an IEP, Student alleges that the educational services that she has actually received have not been appropriate. DOE asserts (and Student denies) that Student had only limited ability and desire to receive academic instruction during the time in question.

At this point in the proceedings, it is neither possible nor necessary to determine precisely Student’s educational needs and what special education and related services should have been provided to meet those needs in order that she receive FAPE. However, there is no dispute that Student received no academic services for many weeks and only a few hours per week (at the most, five hours per week) of individual tutoring at other times. DOE has sought to justify the lack of any academic services during part of this time (the first five weeks of Student’s hospitalization at the Hawthorne Units) by citing to a general rule that no student is to receive any academic services during the first month of his or her stay on the Hawthorne Units. I infer from this argument that Student may have been denied educational services on the basis of a general rule applied to all students, rather than provided with special education services tailored to meet her unique, individual needs as required under FAPE.

For these reasons, I conclude that Student has a viable claim that she has been denied FAPE during the entire time period relevant to this dispute.

B. DOE’s responsibilities pursuant to state special education regulations .

DOE argues that even if Student were denied FAPE, DOE may not be found responsible for this shortcoming and therefore may not be held liable for any compensatory services that may be due Student. DOE’s position is that it is the appropriate LEA or school district, rather than DOE, which bears responsibility for evaluations, development of an IEP and provision of special education services to a particular student.

There is support for this position, in general, within the DOE regulations.¹⁶ In addition, DOE points to the following regulation that specifically applies to a student living and receiving services in an institution under the control of the Massachusetts Department of Mental Health, such as the Hawthorne Units where Student currently resides:

The parent’s school district shall have programmatic and financial responsibility for the student’s special education services when an eligible student lives and receives educational services in a residential facility (other than a group home or a residential school) operated by or, through contract, authorized by the Department of Mental Health, the Department of Public Health, the Department of Youth Services, or the Department of Correction or County House of Correction. In certain of these facilities, the Department of Education may provide special education services, subject to appropriation and resource availability . The parent’s school district shall be responsible to coordinate with the Department and to ensure that the student receives an evaluation, an annual review, and special education services as identified by the Team at a Team meeting convened by the school district. The parent’s school district is not relieved of its obligations under state and federal special education law simply because the student is being served by the Department of Education or any other state agency.¹⁷

This regulation indicates that any responsibility for providing FAPE to students residing within these institutions falls to the appropriate LEA. DOE further points out that this regulation states that DOE “may” provide educational services, indicating that it is within DOE’s discretion whether or not to provide these services, and therefore DOE may not be held responsible for any denial of FAPE.

The following regulatory language, cited by DOE, further clarifies the role of the LEA, rather than DOE, to ensure that appropriate evaluations, annual reviews and Team meetings occur:

The parent’s school district shall be responsible to coordinate with the Department and to ensure that the student receives an evaluation, an annual review, and special education services as identified by the Team at a Team meeting convened by the parent’s school district . The Department shall participate in Team meetings for any student receiving special education services in an institutional setting. To the extent that special education services are provided by the Department in such facilities, the Department will make every effort to provide services consistent with the student’s IEP and available resources.¹⁸

I conclude that, in so far as these regulations provide, DOE is not held responsible for either conducting appropriate evaluations, developing an IEP, or providing FAPE. However, this analysis does not end the inquiry. The issue of DOE’s potential liability for compensatory education must also be considered under relevant special education statutes.

C. DOE’s responsibilities pursuant to the IDEA .

A principle reflected within the IDEA and its predecessor statute (the Education for All Handicapped Children Act or EHA) is that no student with a disability may be denied the opportunity for an appropriate education. This principle has been strongly articulated by the First Circuit Court of Appeals: “Congressional intention is unequivocal: Public education is to be provided to all handicapped children, unconditionally and without exception.”¹⁹ Similarly, the United States Supreme Court has stated that “Congress . . . required participating States to educate all disabled children”.²⁰

It is apparent that this principle applies regardless of the type or severity of a student’s disability, and regardless of where the student resides. Even within places where it has historically been difficult to serve special education students (such as psychiatric institutions) the IDEA mandate remains the same – no child may be allowed to fall through the cracks and be left without appropriate special education services.²¹

The IDEA places ultimate responsibility upon each state education agency (SEA) to ensure that this occurs. In the words of the First Circuit Court of Appeals,

The IDEA requires states, as a condition of accepting federal financial assistance, to ensure a “free appropriate public education” to all children with disabilities. 20 U.S.C. §§ 1400(c), 1412(1).²²

Even though an SEA may not be the primary entity providing special education and related services directly to students, the IDEA squarely places the ultimate responsibility upon the SEA, with the result that the SEA may be held responsible for any failure to assure that all eligible students are provided FAPE. As the Fifth Circuit Court of Appeals explained:

[B]oth the language and the structure of IDEA suggest that either or both entities [the state educational agency and the local educational agency], may be held liable for the failure to provide a free appropriate public education, as the district court deems appropriate after considering all relevant factors. First, IDEA places primary responsibility on the state educational agency, by providing that it “shall be responsible for assuring that the requirements of this subchapter are carried out.” This language suggests that, ultimately, it is the [state educational agency]’s responsibility to ensure that each child within its jurisdiction is provided a free appropriate public education . Therefore, it seems clear that [a state educational agency] may be held responsible if it fails to comply with its duty to assure that IDEA’s substantive requirements are implemented .²³

Other courts have similarly concluded that the SEA must bear responsibility for ensuring that its educational system actually provides FAPE to each student. And, as the ultimate guarantor of each student’s special education rights, the SEA may be held responsible for providing a student with the requisite special education services if there is no LEA available, able or willing to do so.²⁴

In its argument and supplemental legal citations, DOE points only to two cases in support of its position that the responsibilities of DOE as the state education agency are limited. For the following reasons, I find these two cases to be unpersuasive.

Both cases address issues which are substantively different than the issue of responsibility for providing FAPE in the present dispute – in Beard v. Teska , parents sought to recover attorney’s fees from the state education agency, and in Carnwath v. Grasmick , parents sought to hold the state defendants liable for failing to provide adequate due process procedures.²⁵

Also, in both cases, parents’ claims against the state education agency rely on a theory of respondeat superior liability, where the parents seek to impute liability to the SEA for the actions or inactions of other entities that have been identified as having principal responsibility. A situation analogous to the present dispute might involve an attempt to find the SEA responsible where an identified LEA failed to provide adequate special education services. However, in the present dispute Student’s central point is that there is no such LEA available to provide services to her, nor is there any theory of respondeat superior that is being advanced by Student to support her claim.²⁶

I further note that dicta in both cases supports liability of DOE. In Beard v. Teska , the court acknowledged that under the IDEA the “‘State educational agency shall be responsible for assuring ‘that every child disabled within the meaning of the IDEA be provided with a ‘free appropriate public education’”.²⁷ The court appears to be saying that although a state education agency may not be found liable for attorneys fees for the transgressions of an LEA, the SEA may be found liable if it fails to assure that “every child within the meaning of the IDEA” receives FAPE.

In Carnwath v. Grasmick , the court explained that the “SEA may incur liability for a failure to establish adequate procedures” in contrast to the situation where the alleged failure is the result of adequate procedures which are not complied with by another entity.²⁸ In the present dispute, the alleged denial of FAPE did not occur because any person or entity failed to comply with procedures or general practices established by DOE. Rather, the DOE practices and procedures themselves (as set forth in its regulations discussed above in part B of the Discussion section of this Ruling) provide for no entity to be responsible for providing FAPE to a student who does not have an LEA willing and able to do so. If a second or third or fourth student were to present the identical fact situation as the Student in the present dispute with no LEA available to provide services, and if DOE were to respond consistent with its practices and procedures, each of these students would have claims against DOE which are identical to the present dispute. The Carnwath v. Grasmick decision indicates that an SEA may be found liable for a denial of FAPE under these circumstances.

DOE has pointed out that its regulations (discussed above in part B of the Discussion section of this Ruling) limit DOE’s responsibilities and impose all of the burden on the LEA. However, it is apparent that DOE’s state regulations cannot insulate it from statutory responsibilities and potential liability under the IDEA, nor does DOE argue to the contrary.²⁹

In part A of the Discussion section of this Ruling, I found that Student has a viable claim that she has been denied FAPE. During all times relevant to this dispute, DOE had been unable to identify a responsible LEA. During this time period, there has been no LEA to provide Student with FAPE. I also note that DOE has been aware of this situation – in fact, during the time period in question, DOE (through its ESIS division) provided tutoring services to Student and refused to develop an IEP for her, and DOE (through its OSS office) was aware that no LEA had been assigned to take responsibility for Student special education and that no LEA been involved with Student’s education.

For these reasons, I conclude that Student has asserted a claim for compensatory education, pursuant to which DOE may be found liable under the IDEA.

D. DOE’s efforts to assign a responsible LEA .

DOE has responsibility for making LEA assignments pursuant to its regulations (see 603 CMR 28.03(4)(f)) and was requested to do so in this case. DOE argues that it made the assignment in a reasonable and timely manner even though the initial request for assignment was received at the end of February or beginning of March 2002, and DOE’s first (of two assignments) was not made until October 15, 2002. DOE points out the limited information initially in its possession and its inability (through no fault of DOE staff) to obtain additional, necessary information in a timely manner account for the delay in assignment.

Student’s attorney has countered by noting the significant delays in the process, which delays could have been shortened by DOE staff responding more promptly. DOE’s attorney agreed during oral argument that DOE staff did not always respond as expeditiously as one would have liked, thus resulting in some delay in the process, but argues that the process utilized by DOE nevertheless met a standard of reasonableness. Therefore, DOE takes the position that it may not be faulted for any denial of FAPE that may have been caused by delay of an assignment of an LEA for Student.

The affidavits submitted by both parties present a complicated sequence of events which are literally impossible for me to understand adequately on the basis of the present record. I conclude that at this point in the proceedings, I am unable to determine whether Student may be able to establish facts in support of her claim that the delay in assignment of an LEA was unreasonable under the particular circumstances of this case.

However, the fact that DOE may have been making reasonable efforts to identify a responsible LEA does not absolve DOE of responsibility for compensatory claims. A school district’s reasonable (but unsuccessful) efforts to hire a speech-language pathologist, for example, would not eliminate its obligation to provide compensatory education for any missed speech-language services to which a student is entitled.³⁰ Similarly, DOE’s responsibility to Student is not eliminated by its efforts or good faith. Liability for compensatory education is not intended as a punishment of an LEA or SEA, but rather reflects the guarantee found within the IDEA that each student will receive appropriate educational services and, where that has not occurred, will be compensated in a manner that will allow a student to make up for what has been lost. As explained by the First Circuit:

[C]ompensatory education is available to remedy past deprivations. . . . If an IEP from a past year is found to be deficient, the Act [the IDEA] may require services at a future time to compensate for what was lost.³¹

For these reasons, I find that Student’s claim for compensatory education is not negated by DOE’s efforts to assign a responsible LEA.

Order

Student has presented a claim for compensatory education under the IDEA upon which relief may be granted.

Therefore, DOE’s Motion to Dismiss is DENIED.³²

By the Hearing Officer,

_________________

William Crane

Dated: January 7, 2003

1

Student’s Request for Hearing was brought against both the Massachusetts Department of Education (DOE) and the Educational Services in Institutional Setting (ESIS). However, because ESIS is a division of DOE, I do not consider ESIS to be a separate party in these proceedings.

2

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

3

See page 3 of Response of the Department of Education to the Student’s Opposition to the Department’s Motion to Dismiss , dated December 12, 2002, and oral argument on the Motion to Dismiss on December 13, 2002.

4

20 USC 1400 et seq .

5

MGL c. 71B.

6

MGL c. 71B, ss. 1 (definition of FAPE), 2, 3.

7

33 USC 1401(8). The federal regulations adopted pursuant to the IDEA include a similar definition of FAPE. 34 CFR 300.13.

8

Pihl v. Mass. Dept. of Ed. , 9 F.3d 184 (1 st Cir. 1993)(emphasis supplied). See also Roland v. Concord School Committee , 910 F.2d 983, 990 (1 st Cir. 1990)(“The ultimate question for a court under the Act is whether a proposed IEP is adequate and appropriate for a particular child at a given point in time”).

9

Knable v. Bexley City School Dist ., 238 F.3d 755 ( 6th Cir. 2001).

10

“Guide to the Individualized Education Program”, United States Department of Education (July 2000) page 1 (italics in original) (underlining supplied).

11

Honig v. DOE , 484 U.S. 305, 311 (1988).

12

Amanda J. v. Clark County School District , 267 F.3d 877, 35 IDELR 65 (9 th Cir. 2001).

13

Mass. Department of Education’s Administrative Advisory SPED 2002-1: Guidance on the change in special education standard of service from “maximum possible development” to “free appropriate public education” (“FAPE”), Effective January 1, 2002, 7 MSER Quarterly Reports 1 (2001).

14

E.g., 20 USC 1400(d)(1)(A) (purpose of the federal law is to ensure that children with disabilities have FAPE that “emphasizes special education and related services designed to meet their unique needs . . . .”); 20 USC 1401(25)(“special education” defined to mean “specially designed instruction . . . to meet the unique needs of a child with a disability . . .”); Honig v. DOE , 484 U.S. 305, 311 (1988) (FAPE must be tailored “to each child’s unique needs”); Lenn v. Portland School Committee , 998 F.2d 1083 (1 st Cir. 1993) (“appropriateness requires that the instructional plan be custom tailored to address the handicapped child’s ‘unique needs’”); 34 CFR 300.26 (“the term special education means specially designed instruction . . . to meet the unique needs of a child with disability . . .); 34 CFR 300.300(a)(3)(ii) (“services and placement needed by each child with a disability to receive FAPE must be based on the child’s unique needs and not on the child’s disability”); 603 CMR 28.02 (21) (“ special education shall mean specially designed instruction to meet the unique needs of the eligible student . . .”).

15

Roland M. v. Concord School Committee , 910 F.2d 983, 994 (1 st Cir. 1990).

16

See, e.g., 603 CMR 28.03(1)(a), 28.04 and 28.05, which describe the responsibilities of the LEA with respect to evaluations, IEP and FAPE.

17

603 CMR 28.03(4)(c)(emphasis supplied).

18

603 CMR 28.06(d) (emphasis supplied).

19

Timothy W. v. Rochester, NH, School Dist. , 875 F.2d 954 (1 st Cir. 1989). I also note that the so-called “child find” provisions of the IDEA require that the state educational agency have policies and procedures in effect to ensure that all children with disabilities within the state are identified, located and evaluated for purposes of special education and related services. 20 USC 1412(3).

20

Honig v. Doe, 484 U.S. 305, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988) (emphasis in original).

21

See, e.g., Timothy W. v. Rochester, NH, School Dist. , 875 F.2d 954 (1 st Cir. 1989) (legislative record is “replete with statements by legislators that the Act was in response to this deplorable state of affairs: Exclusion from school , institutionalization, . . . are echoes which the subcommittee has found throughout all of its hearings”).

22

Pihl v. Mass. Dept. of Ed. , 9 F.3d 184 (1 st Cir. 1993).

23

St. Tammy Parish School Bd. v. State of Louisiana , 142 F.3d 776 (5 th Cir. 1998) (emphasis supplied).

24

Honig v. Doe, 484 U.S. 305, 329, 108 S.Ct. 592, 607, 98 L.Ed.2d 686 (1988) (affirming by an equally divided Court the Ninth Circuit’s holding that the federal court may order a state to provide services directly to a handicapped student where the LEA has refused to do so); Gadsby v. Grasmick , 109 F.3d 940 (4 th Cir. 1997) (“SEA is ultimately responsible for the provision of a free appropriate public education to all of its students and may be held liable for the state’s failure to assure compliance with IDEA”); Todd D. v. Andrews , 933 F.2d 1576, 1582-1583 (11th Cir. 1991) (“law is clear that if the DeKalb LEA is unable or unwilling to serve Todd the state DOE must do so”); Doe by Gonzales v. Maher , 793 F.2d 1470, 1492 (9 th Cir. 1986)(state education agency may be required to provide direct services to student when LEA’s violation is significant, and the SEA had adequate notice and reasonable opportunity to obtain compliance); Jose P. v. Ambach , 669 F.2d 865 (2 nd Cir. 1982) (state education agency may be found liable for failing to ensure compliance with the EHA); Kruelle v. New Castle County School District , 642 F2d 687 (3 rd Cir. 1981) (state Board of Education bore responsibility for providing an appropriate education for student); Corey H. v. Board of Education of City of Chicago , 995 F.Supp. 900, 904-905, 912-915 (N.D.Ill. 1998) (“IDEA squarely places the ultimate responsibility for ensuring compliance with its mandates on the state educational agencies”); Moubry v. Independent School District No. 696 , 951 F.Supp. 867, 891-892 (D.Minn. 1996) (SEA “bears the ultimate responsibility for ensuring that all eligible students are provided with a free, appropriate public education”); Cordero by Bates v. Pennsylvania Dept. of Education , 795 F.Supp. 1352 (M.D.Pa. 1992) (“state must assure that in fact the requirements of the IDEA are being fulfilled” and “violation of even one child’s rights under the Act is sufficient to visit liability on the state”); Parks v. Pavkovic , 557 F.Supp. 1280 (N.D.Ill. 1983) (student’s rights “cannot be permitted to slip between the cracks simply because the state of Illinois has apportioned liability in a way that does not focus blame on a single agency”) aff’d in relevant part 753 F.2d 1397 (7 th Cir. 1985); Georgia Ass’n of Retarded Citizens v. McDaniel, 511 F.Supp. 1263 (N.D.Ga. 1981) (federal statute places responsibility on the state educational agency either to ensure that the LEA provides services or to provide services directly to the student itself), aff’d, 716 F.2d 1565 (11th Cir. 1983); Tennessee Dep’t of Mental Health and Mental Retardation v. Doe , 20 IDELR 347 (Tenn. Ct. of App. 1993) (“Tennessee Department of Education must bear the financial burden for providing a FAPE to John Doe until such time in the future as it spells out with specificity . . . which local school district must assume this financial burden”).

25

Beard v. Teska , 31 F.3d 942, 954 (10 th Cir. 1994); Carnwath v. Grasmick , 115 F.Supp.2d 577, 582 (D.Md. 2000).

26

Beard v. Teska , 31 F.3d 942, 954 (10 th Cir. 1994); Carnwath v. Grasmick , 115 F.Supp.2d 577, 582 (D.Md. 2000).

27

Beard v. Teska , 31 F.3d 942, 954 (10 th Cir. 1994).

28

Carnwath v. Grasmick , 115 F.Supp.2d 577, 582 (D.Md. 2000).

29

See, e.g., United States v. New England Coal and Coke Co ., 318 F.2d 138 (1 st Cir. 1963) (“the power to issue regulations is not the power to change the law”).

30

E.g., Carlisle Area Sch. Dist. v. Scott P ., 62 F.3d 520 (3 rd Cir. 1995) (bad faith not required to establish compensatory education claim).

31

Pihl v. Mass. Dept. of Ed. , 9 F.3d 184 (1 st Cir. 1993).

32

Student asserts an additional legal claim under state law. Student argues that by failing to provide FAPE to Student while she has been at the Hawthorne Units (which are an institution under the control of the Mass. Department of Mental Health), DOE has violated a state statute (MGL c. 71B, s. 12). This statute states, in relevant part, that DOE “shall establish and maintain a school department for school-age children in each institution under the control of the departments of mental health . . . .” DOE argues that this statutory mandate allows DOE discretion as to what special education services, if any, are to be provided by DOE, and that DOE has exercised this discretion by requiring that the LEA, rather than DOE, provide FAPE pursuant to regulations quoted above in part B of the Discussion section of this Ruling. Because I have already concluded that Student has stated a claim (under the IDEA) upon which relief may be granted, I need not resolve this state law claim in order to address DOE’s Motion to Dismiss , and I decline to do so.