Nahant Public Schools – BSEA #04-1098



<br /> Nahant Public Schools – BSEA #04-1098<br />

COMMONWEALTH OF MASSACHUSETTS

SPECIAL EDUCATION APPEALS

In Re: Nahant Public Schools BSEA # 04-1098

DECISION

This decision 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.

A hearing was held on October 15, 2003 in Malden, MA, before William Crane, Hearing Officer. Those present for all or part of the proceedings were:

Student’s Mother

Student’s Father

Cecilia DiBella Superintendent, Nahant Public Schools

Josephine Testaverde Director of Special Education, Nahant Public Schools

Mary Gallant Attorney for Nahant Public Schools

Catherine Putney-Yaceshyn Observer

The official record of the hearing consists of documents submitted by the Parents and marked as exhibits P-1 and P-2; documents submitted by the Nahant Public Schools (hereafter, Nahant) and marked as exhibits S-1 and S-2; and approximately seven hours of recorded oral testimony and argument. As agreed by the parties, written closing arguments were due on November 10, 2003, and the record closed on that date.

ISSUES

Issue 1 : Does Nahant owe Parents an additional $500.00 for tutorial services for Student?

Issue 2 : If so, does Nahant owe Parents statutory interest on the unpaid $500.00 from June 21, 2003 until paid?

Issue 3 : Should the Hearing Officer determine prevailing party status with respect to Parents’ claims for attorney fees? If so, are Parents prevailing parties?

Issue 4 : Has Nahant improperly failed to pay two invoices for math tutorial services (invoice # 1914 for $200.00 and invoice # 2015 for $550.00) totaling $750.00?

Issue 5 : Does Nahant owe statutory interest on any unpaid or late-paid tutorial fees from thirty days after submission until paid?

Issue 6 : Should the Bureau of Special Education Appeals issue a remedial order requiring specified individuals (e.g., Superintendent of Schools or Chairperson of the School Board) to pay all tutorial invoices within thirty days of receipt unless Nahant sends a letter to the tutor detailing why it cannot be paid in that time and stating when it will be paid? Should the BSEA issue a remedial order requiring that all tutorial invoices be paid no later than sixty days after receipt? Should any other remedial orders be issued?

PROCEDURAL HISTORY

This Decision addresses Parents’ claims of non-compliance with a BSEA Order resolving prior disputes between the same parties.

The parties’ prior disputes were the subject of two cases before the Bureau of Special Education Appeals (hereafter, BSEA) which were consolidated (case # 03-0894 and case # 03-4016). In the hearing requests for these previous cases, Parents alleged that Nahant was not paying for tutorial services that were described within Student’s IEP and that were required as part of Nahant’s responsibility to provide Student with a free appropriate public education (hereafter, FAPE).

After a number of months, the parties reached an agreement settling all claims. The parties’ settlement agreement was in the form of a stipulation. The parties jointly requested that I enter the stipulation as a BSEA Order. The parties’ stipulation was entered by me as a BSEA Order dated May 29, 2003 (hereafter, May 29 th BSEA Order).1

The May 29 th BSEA Order, which is described more fully below, essentially requires Nahant to pay Parents for certain out-of-pocket expenses which they incurred to pay tutors for Student, and further requires Nahant to pay for certain prospective tutoring services until Student’s expected graduation from public high school in June 2004. The May 29 th BSEA Order also provides that Parents agree to waive any attorney fees claims with respect to the previous disputes, but only if Nahant fully reimburses Parents, pursuant to the parties’ stipulation, by June 20, 2003.

On August 11, 2003, the BSEA received from Parents a Motion for an Order to Show Cause and an Order Requiring Nahant Public Schools to Comply with BSEA Order Dated May 29, 2003 and Other Relief . In their Motion, Parents sought from the Hearing Officer (1) an Order to Show Cause why the School District should not forthwith comply with the May 29 th BSEA Order, (2) an Order compelling Nahant to comply immediately with the May 29 th BSEA Order and (3) any other relief necessary or appropriate to implement fully the May 29 th BSEA Order.

The BSEA treated Parents’ Motion as a request for hearing regarding compliance with my Order resolving a previous matter, and the case was assigned to me (as the Hearing Officer) as a new proceeding with a new docket number.

At my request, the parties then filed documents clarifying their positions and what issues remained in dispute. Pursuant to a subsequent conference call with the parties on September 18, 2003, I determined the issues in dispute to be the first six (out of seven) issues described within Parents’ September 16, 2003 Memo on Motion for an Order to Show Cause . Nahant agreed with this formulation of the issues.

Rather than issuing an Order to Show Cause, as originally requested by Parents, I determined during the September 18 th conference call with the parties that the appropriate process for resolution of this matter was to proceed directly to an evidentiary Hearing on the merits. The Hearing was scheduled for October 15, 2003, with pre-trial briefs due on October 14, 2003. The pre-trial briefs addressed the authority of a BSEA Hearing Officer to provide the requested relief with respect to issues # 2 and # 5 (award of interest), issue # 3 (attorney fees) and issue # 6 (remedial order).

Parents are both attorneys. They have taken the position that they are participating in this BSEA dispute both as parents and as attorneys. Parents have also taken the position that they are “aggrieved parties” for purposes of this proceeding, a view that is supported by a recent decision of the First Circuit.2 Nahant has not disputed these assertions.

FACTS

The relevant facts will be addressed within each part of the Discussion below.

DISCUSSION

Student is an individual with a disability, falling within the purview of the Individuals with Disabilities Education Act3 and the state special education statute.4 As such, Student is entitled to FAPE.5 Neither his eligibility status nor his entitlement to FAPE is in dispute.

A. Jurisdiction of the BSEA and Scope of Proceedings

The parties have correctly understood the current BSEA proceeding as addressing the alleged failure of Nahant to comply with a previous Order of the BSEA resolving earlier disputes before the BSEA. As such, this proceeding falls squarely within 603 CMR 28.08(6)(b) which describes the authority of the BSEA as follows:

A party contending that a Bureau of Special Education Appeals decision is not being implemented may file a motion with the Bureau of Special Education Appeals contending that the decision is not being implemented and setting out the areas of non-compliance. The hearing officer may convene a hearing at which the scope of the inquiry shall be limited to the facts on the issue of compliance, facts of such a nature as to excuse performance, and facts bearing on a remedy . Upon a finding of non-compliance, the hearing officer may fashion appropriate relief, including referral of the matter to the Legal Office of the Department or other office for appropriate enforcement action. [Emphasis supplied.]6

I note, at the outset, the relevance of this regulatory language (particularly the underlined words) to the scope of my inquiry in this dispute. During the Hearing (particularly during cross-examination of Nahant witnesses), Parents sought to ask a large number of questions to which Nahant’s attorney objected. I sustained the majority of those objections, in large part because of the limited scope of this Hearing, as described within the above-quoted regulation.

B. Substantive Claims under the May 29, 2003 BSEA Order

1. Interpretation of the BSEA Order in general .

At issue in this dispute generally is whether Nahant has complied with the May 29 th BSEA Order and if not, what remedial orders should issue. The May 29 th BSEA Order entered (without altering in any way) the stipulation which was agreed upon by the parties in order to settle the previous disputes. As a result, all of the substantive requirements contained within the May 29 th BSEA Order are the terms of the parties’ stipulation. Therefore, I will enforce the May 29 th BSEA Order as an Order of this Hearing Officer resolving the parties’ previous disputes. However, I will seek to understand (and interpret) the terms of the Order as I would a stipulation by the parties.7

Contract principles are generally to be utilized to determine the meaning of language contained within settlement agreements relative to special education claims.8 These same principles apply to a stipulation of the parties and will therefore be used to understand the obligations of the parties in the present dispute.9

I now turn to the specific points of contention regarding the May 29 th BSEA Order.

2. Payment of $500.00 for tutorial expenses .

Parents seek to recover from Nahant $500.00 which Parents claim is owed them pursuant to paragraph # 4 of the May 29 th BSEA Order.

Paragraph # 4 (and the related paragraph # 5) read as follows:

4. Nahant shall pay $2,650.00 (Two Thousand Six Hundred Fifty Dollars) to the Parents as reimbursement for tutoring which [Student] received during the 2001-2002 school year, summer 2002, and the 2002-2003 school year by June 20, 2003. Prior to such payment, the Parents shall submit to Nahant invoices from the Math Studio showing tutoring services rendered which Nahant did not pay for on 2/02/02 (Math Studio Inv. # 1599), 4/02/02 (Inv. # 1664), 4/17/02 (Inv. # 1725), 5/4/02 (Inv. # 1677), 5/18/02 (Inv. # 1681) and 6/8/02 (Inv. # 1719).

5. Parents waive their claim for attorney fees related to this BSEA appeal provided Nahant pays the reimbursement set forth in Paragraph 4 above by June 20, 2003. If Nahant fails to pay the Parents the reimbursement set forth in Paragraph 4 above by June 20, 2003, the Parents shall have the right to seek enforcement of this Stipulation and to seek attorney’s fees for this BSEA appeal, if available.

In early June 2003, Dr. Testaverde (Nahant’s Director of Special Education) received the six invoices, specifically referenced in the second sentence of the above-quoted paragraph # 4, together with additional accompanying documentation from Parents. She determined that the total amount of payments made by Parents, for which she had received documentation, amounted only to $2,150.00 – that is, $500.00 less than the amount of $2,650.00 set forth in paragraph # 4 of the May 29 th BSEA Order. Testimony of Testaverde; exhibit S-2 (the six invoices referenced in paragraph # 4 of the May 29 th BSEA Order).

Dr. Testaverde then consulted with Dr. DiBella (Nahant’s Superintendent of Schools). They both concluded that Parents were seeking reimbursement of expenses and that the Town of Nahant would pay Parents $2,150.00 (the amount for which there was documentation of Parents’ expenses) but would not be willing pay the Parents’ full claim for reimbursement without additional back-up documentation for the remaining $500.00. The Town of Nahant, which ultimately must approve and then pays for the reimbursement claims, requires appropriate back-up documentation (typically invoices or cancelled checks) for requests for reimbursement prior to payment. Testimony of DiBella, Testaverde.

Nahant, through its attorney, then sought from Parents either invoices, cancelled checks or other appropriate documentation sufficient to substantiate the remaining $500.00 in tutoring expenses. Nahant’s attorney made clear to Parents that Nahant would immediately approve and process for payment the remaining $500.00 as soon as Parents provided this additional documentation. Parents have consistently declined to provide the requested additional documentation. Testimony of Mother, Father.

Parents explained that they do not have in their possession the cancelled checks documenting payment of the remaining $500.00 in tutorial expenses because the tutors were paid by the Parents from a bank checking account which did not automatically return to the Parents a copy of cancelled checks. Parents understood that they would be able to obtain the cancelled checks from the bank by making a specific request to the bank, paying a required bank fee and then waiting a period of time for their request to be processed. (Parents did not testify as to the amount of the bank fee and seemed unsure as to the length of time that would be needed to process the request.) Parents stated that they did not want to take the time and incur the expense of obtaining the cancelled checks. Testimony of Mother, Father.

Parents further explained they did not want to provide the documentation for the $500.00 because they believed that by doing that, they might lose their claim to attorney fees pursuant to paragraph # 5 of the May 29 th BSEA Order. Testimony of Mother, Father.

Paragraph # 5 (quoted above) states that Parents waive their claim for attorney fees related to this BSEA appeal only if Nahant “pays the reimbursement set forth in Paragraph 4 above by June 20, 2003.” Apparently Parents believed that by providing Nahant the requested documentation for the remaining $500.00, Parents may strengthen Nahant’s claim that it was justified in withholding the $500.00 until it received this documentation, and therefore that it has been in compliance with paragraph # 4; and this would weaken Parents’ position that they have the right to pursue attorney fees because Nahant, without justification, has failed to pay the full amount of $2,650.00 by June 20, 2003.

For these reasons, Parents have declined to obtain and provide any additional documentation to Nahant, preferring instead to rely upon their argument that they are now entitled to full reimbursement of the $2,650.00 pursuant to the May 29 th BSEA Order. I now turn to the question of whether Parents may obtain the $500.00, pursuant to paragraph # 4, without submitting additional documentation.

The language of paragraph # 4 of the May 29 th BSEA Order is unambiguous; the language used is clear on its face.10 Paragraph # 4 must therefore be understood and enforced according to the plain meaning of the words used.11

Nahant’s obligation under paragraph # 4 is stated as “to pay $2,650.00 (Two Thousand Six Hundred Fifty Dollars) to the Parents as reimbursement for tutoring which [Student] received . . . .” The payment is to be made “as reimbursement” for tutoring services, but this phrase describes the nature of the payment, rather than imposing an obligation upon Parents to produce any particular documentation in support of their claim.

A plain reading of the actual language used in paragraph # 4 leads to the conclusion that the paragraph imposes obligations upon Parents only within the second sentence. It is this sentence which sets forth Parents’ obligations, as a pre-condition for payment of the $2,650.00, to submit to Nahant certain specified tutoring invoices prior to being paid by Nahant. Nahant’s attorney orally stipulated (and it was confirmed through testimony of Dr. Testaverde) at the Hearing that Parents provided the six specified invoices to Nahant in a timely manner. It is therefore not disputed that Parents satisfied their obligation under the second sentence of paragraph # 4.

Had there been no stipulation or settlement agreement of the parties, Nahant’s customary requirements regarding documentation needed for purposes of reimbursement of expenses would, of course, apply. But, once the parties reduced their obligations to a written agreement, the responsibilities of the parties are determined by the agreement itself, rather than by the customary practices of the school district or town. In other words, I may look only to the actual language used within the agreement in order to determine the parties’ obligations.

Nahant makes several arguments. First, Nahant takes the position that an additional principle should be included within paragraph # 4: “[i]mplicit within the agreement was Nahant’s good faith promise to pay for tutoring so long as the parents provided satisfactory invoices.”12 I am not permitted to read into the language additional, unstated terms or conditions even though they may have been expected or assumed by one party.13 Similarly, I may not consider the testimony of Nahant officials that they believed that Parents would have to provide documentation in addition to what is actually required by the language used in the May 29 th BSEA Order.14

Second, Nahant argues that pursuant to MGL c. 41, ss. 50 and 56, the town accountant would properly refuse to pay the $500.00 because there is no accompanying paperwork documenting the expense, as required in order to reimburse an expense. Nahant mischaracterizes Parents’ claim. Once the stipulation was entered into by the parties and the May 29 th BSEA Order issued, Parents no longer were seeking the $500.00 as a reimbursement of expenses but rather were seeking to enforce the terms of an agreement between the parties and an order from a BSEA Hearing Officer. I can find nothing within the statutory sections cited by Nahant which would preclude the town accountant from making payment pursuant to such an agreement or order once Parents have satisfied their obligations within that agreement/order.

Third, Nahant argues that there was a mutual mistake as to fact and therefore no “meeting of the minds”. Nahant takes the position that both parties erroneously believed that the documentation to be provided by Parents pursuant to the second sentence of paragraph # 4 of the May 29 th BSEA Order would equal $2,650.00, but in fact the documentation totaled only $2,150.00. I do not doubt that Nahant believed that the documentation would equal $2,650.00, but the unrebutted evidence was that Parents made no mistake – Father drafted paragraph # 4 to refer to specific documents within Parents’ possession without making any representation that these documents would total $2,650.00. Testimony of Father. There being no mutuality of mistake, Nahant’s argument fails.15

I therefore reach the following conclusions. Reduced to its essential ingredients, paragraph # 4 requires only that Parents provide the six specified invoices, and Nahant then must pay Parents $2,650.00 by June 20, 2003. Parents, in a timely manner, provided Nahant with the invoices. Nahant violated the agreement by paying Parents $2,150.00 (rather than $2,650.00) by June 20, 2003. Accordingly, Nahant must pay Parents the additional $500.00 forthwith.

3. Statutory interest .

Parents claim that Nahant owes “statutory interest” payments both for the failure to reimburse Parents the above-referenced $500.00 in a timely manner, and as a result of late payments to persons providing tutorial services to Student.

Parents refer to their claim as one for “statutory interest” because they pursue this claim not on the basis of any language within the May 29 th BSEA Order but rather on the basis that I have authority to award interest pursuant to Massachusetts statutes which generally allow interest payments relative to tort actions (MGL c. 231, s. 6B) and contract actions (MGL c. 231, s. 6C) once it has been determined that Nahant did not make payment on a timely basis.

The only arguably applicable statutory section would appear to be section 6C since the current dispute involves the enforcement of contractual claims. (I note, however, that the statutory analysis below would apply equally to both section 6B and section 6C.)

MGL c. 231, s. 6C provides as follows:

In all actions based on contractual obligations, upon a verdict, finding or order for judgment for pecuniary damages , interest shall be added by the clerk of the court to the amount of damages, at the contract rate, if established, or at the rate of twelve per cent per annum from the date of the breach or demand. If the date of the breach or demand is not established, interest shall be added by the clerk of the court, at such contractual rate, or at the rate of twelve per cent per annum from the date of the commencement of the action, provided, however, that in all actions based on contractual obligations, upon a verdict, finding or order for judgment against the commonwealth for pecuniary damages, interest shall be added by the clerk of the court to the amount of damages, at the contract rate, if established, or at a rate calculated pursuant to the provisions of section six I from the date of the breach or demand. If the date of the breach or demand is not established, such interest shall be added by the clerk of the court from the date of the commencement of the action. [Emphasis supplied.]

There are several difficulties with the application of this statutory language to the present dispute. First, section 6C allows for interest to be added “by the clerk of the court”, indicating that it applies to judicial proceedings. The statutory language provides no basis upon which I may conclude that this same authority has been granted to a BSEA Hearing Officer.

In addition, the language of section 6C applies only to judgments for pecuniary damages.16 A BSEA Hearing Officer does not have the authority to award pecuniary damages.17

In their written argument, Parents reference two cases wherein the Massachusetts Supreme Judicial Court (SJC), citing to MGL c. 231, s. 6B, affirmed the right of an administrative agency (the Mass. Commission Against Discrimination or MCAD) to order a party to pay interest.18 Parents rely on these cases for the proposition that the BSEA, as an administrative agency, may also order a party to pay statutory interest.

In these two decisions, the SJC first determined that the MCAD had the authority to order interest payments pursuant to MCAD’s own enabling statute (MGL c. 151B, s. 5). The SJC then concluded that MCAD is allowed to look to MGL c. 231, s. 6B for “guidance” in calculating the rate and amount of interest that may be ordered.19

There is nothing within these cases which supports the proposition that section 6B, by itself, authorizes a BSEA Hearing Officer to award statutory interest payments by Nahant. In order for Parents to prevail, I must find this authority elsewhere.

Rather than argue that I have the authority to award interest pursuant to the terms of the May 29 th BSEA Order (the Order does not address the issue), Parents’ position appears to be that I
have the inherent authority as a BSEA Hearing Office to order interest.20 As a general rule, in a special education dispute, a parent may be awarded monetary payment as reimbursement for out-of-pocket expenses or as damages.21 As noted above in this subsection, as a BSEA Hearing Officer, I do not have authority to award damages. I therefore consider whether I have the authority to order interest as reimbursement.

I am aware of only two cases where a court or hearing officer has awarded interest payments within the context of a special education dispute. A federal district court ordered a school district to pay parents for interest payments on a loan which parents obtained in order to make initial payments necessary to place their child at Landmark. The interest payments were considered reimbursement for expenses actually incurred by parents in privately placing their child.22

A Rhode Island hearing officer also ordered reimbursement of interest payments. The hearing officer reasoned that the federal special education statute (IDEA) required reimbursement of parents’ expenses of privately placing the student, which expenses included interest charged by the parents’ lender on a tuition loan. The hearing officer declined to apply the statutory interest of 12%, used by the Courts in the State of Rhode Island, because this rate did not reflect parents’ actual expenses and therefore could not be considered to be part of a claim for reimbursement. The hearing officer’s analysis is instructive:

For there to be a reimbursement, there has to be an expenditure. The fact that the parents may have lost interest is not the same as having to pay interest such as one would if one had to borrow money. I do not view the loss of interest as an expenditure. In other words, if the parent took money from a mutual fund, bank account or certificate of deposit as long as the amount taken by the parents is reimbursed the school district would comply with the law. If on the other hand, the parents used a line of credit, mortgaged their home or borrowed money from any source, the interest charged by the lender would have to be reimbursed by the School District.23

Following the guidance of these two cases, I decline to order interest payments because it appears that Parents have incurred no out-of-pocket interest expenses and therefore have no reimbursement claim regarding interest.

4. Payment of tutorial bills and request for remedial orders .

Parents seek remedial orders in response to what they believe are the repeated failures of Nahant to pay the bills submitted by Student’s tutors in a timely manner, as required by the May 29 th BSEA Order. I will first consider Parents’ allegations regarding payment of bills for tutoring services, and then turn to the issue of whether any remedial orders should be issued.

In their Motion for an Order to Show Cause and an Order Requiring Nahant Public Schools to Comply with BSEA Order Dated May 29, 2003 and Other Relief initiating this matter before the BSEA on August 11, 2003, Parents alleged that Nahant has refused to pay two bills submitted on 3/12/03 and 5/6/03 totaling $750.00, that Nahant was generally refusing to pay bills submitted by Student’s tutors for all tutorial services provided after the May 29 th BSEA Order, that Nahant had refused to pay nearly $2,000.00 in tutorial bills to date and that Nahant will continue to refuse to pay the tutoring bills. Exhibits P-1, P-2 (the two invoices totaling $750.00).

At my request, Nahant submitted a written response to this motion, and on September 16, 2003, Parents responded to Nahant’s submission. In their response, Parents reiterated their claim that invoices from one tutor (the Math Studio), dated 3/12/03 and 5/6/03 totaling $750.00 remain unpaid. Parents further stated that the other tutor (Kathleen Jasaitis) had submitted a bill to Nahant on June 18, 2003 for services in April, May and June 2003 and that Nahant had refused to pay this bill until payment was finally made on September 9, 2003. These submissions by the parties effectively clarified Parents’ claims regarding late and unpaid invoices.

At the evidentiary Hearing on October 15, 2003, Nahant’s attorney stipulated that the invoices totaling $750.00 from the Math Studio were still outstanding, that Nahant recognized its responsibility to pay those bills, and that Nahant administrators had approved these bills for payment.

There was unrebutted testimony of Nahant’s witnesses, and I so find, that Nahant was unaware of these outstanding invoices until Dr. Testaverde (Nahant’s Director of Special Education) contacted the Math Studio in September 2003 to determine if there were any outstanding invoices and, in response, the Math Studio sent to Nahant by facsimile the two invoices totaling $750.00 during the third week of September. Dr. Testaverde then approved them for payment, as did the Nahant School Committee. At the Hearing, Nahant officials testified that final payment was expected within one to three more weeks. Testimony of Testaverde, DiBella.

Parents believed that the first invoice had been submitted by the tutor to Nahant on 3/12/03 and the second on 5/6/03. Testimony of Father, Mother. However, there is nothing in the record to establish that Nahant actually received the invoices until September 2003.

In a document submitted to me by Parents dated October 27, 2003, Parents acknowledged that they believed that a check for the $750.00 had been issued by the Town of Nahant and that payment would be received by the Math Studio by the end of October 2003.

With respect to the invoices from the other tutor (Kathleen Jasaitis), there was unrebutted testimony at the Hearing, and I so find, that the tutor had submitted invoices to Nahant on June 18, 2003 for $600.00 of tutorial services and that Nahant made payment of these invoices on September 9, 2003. Testimony of Mother.

There was further unrebutted testimony, and I so find, that Nahant has never provided either tutor with notice, advising the tutor of the expected date of payment, when the invoice will not be made within thirty days, as required by paragraph # 3 of the May 29 th BSEA Order (quoted below). Testimony of Mother.

The May 29 th BSEA Order addresses the issue of payment of tutoring bills in paragraphs ## 1, 2 and 3 as follows:

1. Nahant shall continue to provide and pay for all tutorial services of four (4) hours per week provided to [Student] during his entire, current Junior year and all other provisions of his 2002-2003 IEP.

2. Nahant shall provide and pay for all tutorial and other services which are set forth on the attached IEP entered into by Swampscott and the Parents for [Student] on or about April 30, 2003 until [Student’s] graduation from Swampscott High School in June 2004.

3. Nahant shall pay all tutorial bills within a reasonable time after receipt. If payment will be made more than thirty (30) days after receipt, Nahant shall so notify the Tutor involved and advise such person of the estimated date for payment.

At issue in this dispute is whether Nahant has complied with these three paragraphs of the May 29 th BSEA Order and if it has not complied, whether certain remedial orders may be appropriate.

The operative standards are contained within the above-quoted paragraph # 3 – that is, Nahant is required to pay the tutorial bills within a “reasonable time” after receipt. The parties dispute whether Nahant has paid the tutorial bills within a reasonable time after receipt.

Payment of a bill by Nahant is a multi-step process that begins with receipt of the bill by an administrative staff person and then review and approval by Nahant’s Director of Special Education. The bill may then be reviewed by Nahant’s Superintendent of Schools who typically does not explicitly approve bills for payment but has the authority to deny payment. The bill then proceeds to the Nahant School Committee which must approve the bill at one of its regularly-scheduled meetings. Next, the bill goes to the Nahant Selectmen who consider the bill at one of their regularly-scheduled meetings. Approval of two Selectmen is required. Finally, the bill goes to those persons within the Town of Nahant who are responsible for final review and payment. Testimony of Testaverde, DiBella.

What is apparent from this process, as explained by the Nahant witnesses, is that although review and approval by the Nahant Director of Special Education and Superintendent normally occurs within a few days, the entire review and approval process includes persons (for example, the Selectmen) and legal entities (for example, the Town of Nahant) not within the control of the Nahant School District, which is the party in this proceeding. The Nahant Superintendent explained that all bills are expected to be paid within thirty days of submission, but for the above-explained reasons, the thirty-day time frame cannot be assured. Testimony of Testaverde, DiBella.

From the perspective of the tutors, there is a need to receive timely payment. Mother explained that the particular tutors providing services to Student depend on payments being received promptly in order to continue in the business of tutoring. Testimony of Mother.

The courts have explained that determination of what is a “reasonable time” for payment is an imprecise art which depends largely on the circumstances of the particular dispute.24

Within the context of the circumstances of the current dispute, I find that Nahant administrators acted promptly to review and approve the invoices from Math Studio for $750.00 once Nahant received those invoices during the third week of September 2003. I do not believe it to be unreasonable that payment of these particular invoices is expected to be received by the end of October 2003. However, I find that taking nearly three months to pay the invoices of the other tutor (submitted on June 18, 2003 and paid on September 9, 2003) is not reasonable.

Having reviewed the tutoring bills which Nahant has allegedly refused to pay or has paid late, I now turn to Parents’ request for remedial orders from the BSEA. Parents propose that two orders be issued; each will be considered below.

Parents’ first proposed remedial order would require specified individuals (e.g., Superintendent of Schools or Chairperson of the School Board) to pay all tutorial invoices within thirty days of receipt unless Nahant sends a letter to the tutor detailing why it cannot be paid in that time and stating when it will be paid. Parents take the position that by making a single person accountable for payment, the remedial order would increase the likelihood that the tutors would be paid in a timely manner and Parents (and the tutors) would receive more reliable information as to when unpaid bills would likely be paid. I do not believe that such an order would be appropriate for the following reason.

I have described above the process by which tutoring bills are paid. This process involves review and approval not only by senior administrators within the Nahant School District, but also the Nahant School Committee, the Nahant Board of Selectmen and the Town of Nahant. It is apparent that no single person within the Nahant School District (the party in this proceeding) may be designated as responsible for ensuring that all of Student’s tutoring bills are appropriately paid. I therefore conclude that it would be inappropriate to issue such an order.

The second proposed remedial order would require that all tutorial invoices be paid no later than sixty days after receipt. Such an order would change the terms of the May 29 th BSEA Order (paragraph # 3) which requires Nahant to pay all tutorial bills “within a reasonable time after receipt.” The term “reasonable time” is quantitatively different than a requirement that all bills be paid within sixty days.25

I therefore find that an order requiring Nahant to pay bills within sixty days would substantively change Nahant’s responsibilities under the May 29 th BSEA Order. For reasons already set forth in part B2 of this Decision, it would be inappropriate for me to so alter the parties’ agreement, and I decline to issue the requested order.

I now turn to the more general question of whether any other remedial order should issue and if so, what that order should address.

The history of this dispute reflects a high level of contention (and consumption of litigation resources) to address a $500.00 dispute and the timely payment of on-going tutorial services which Nahant has already agreed to pay. I have observed over the course of several months that the parties have difficulty communicating with each other in a timely, direct and constructive manner. Nahant takes the position that all communication must come through counsel and Parents take the position that Nahant’s counsel never returns their phone calls. Virtually all communication appears to be through written submissions unless it occurs during a conference call with me or during a hearing. I have found that the parties’ written submissions are, at times, lengthy, confrontational and/or unresponsive to concerns expressed by the other party, with Parents then turning to the BSEA to litigate their claims when their demands are not satisfied.

At the end of the evidentiary Hearing (October 15, 2003) in the present proceedings, Parents filed a fresh motion alleging failure of Nahant to pay invoices submitted to Nahant in September and October 2003. Parents stated at the evidentiary Hearing that they intend to file new motions with the BSEA each month, as necessary, through the end of the school year, in order to seek to require Nahant to pay tutoring bills in a timely manner and comply with the May 29 th BSEA Order. I therefore assume that, left to their own devices, the parties’ disputes may continue to spawn new litigation before the BSEA.

I also note that the May 29 th BSEA Order requires (in paragraph # 3) that if payment will be made more than thirty days after receipt of the invoice, Nahant must notify the tutor involved and advise him or her of the estimated date for payment. At the evidentiary Hearing, Nahant conceded that it has never sent such notices.

Because of Nahant’s failure to send an explanation to the tutor when a payment will take more than thirty days and because of the need to improve communication between the parties regarding compliance with the May 29 th BSEA Order for the purposes of facilitating resolution of any future disputes as well as reducing the likelihood of the parties needing to resort to the BSEA hearing process, I issue the following remedial order :

During the first full week of each month (beginning with the week starting January 5, 2004), Nahant shall send to Parents a written status report which states whether there are any invoices which remain unpaid for at least thirty days after receipt by Nahant. In the event there are one or more such invoices, the status report shall include the following information for each such invoice:

1. Date Nahant received the invoice.

2. Name of tutor.

3. Dates of tutoring.

4. Dollar amount of invoice.

5. By whom (if anyone) invoice has been approved for payment.

6. By whom (if anyone) invoice has been disapproved, with explanation of the reasons for disapproval.

7. Estimated date of payment.

8. An explanation for the delay in payment.

Status reports shall continue to be provided until all tutoring invoices have been paid for the current (2003-2004) school year.

5. Additional claims .

As noted above, on October 15, 2003, at the completion of the Hearing regarding issues raised by Parents in their motion filed on August 11, 2003 seeking compliance with the May 29 th BSEA Order, Parents filed a fresh motion entitled Petitioner’s Motion for Order to Show Cause and Orders Requiring Nahant Public Schools to Comply with BSEA Order Dated May 29, 2003 . In this motion, Parents allege failure of Nahant to pay certain invoices submitted to Nahant in September and October 2003, and seek an Order from me requiring Nahant to pay these bills.

I issued an Order dated October 17, 2003 directing Parents to provide Nahant and me with a copy of all outstanding tutorial bills identified within its motion. In their response, dated October 27, 2003, Parents concluded that presently there are no outstanding unpaid tutorial bills because they have all been paid recently by Nahant.

On the basis of Parents’ submission of October 27 th , I conclude that I need take no further action with respect to their above-referenced motion filed on October 15 th .

C. Attorney fees claim

The parties agree that as a BSEA Hearing Officer, I do not have the authority to determine the amount of attorney fees or issue an order awarding them. In a ruling in another matter, I similarly concluded that the federal district court has original jurisdiction to hear and decide an attorney fees claim and a BSEA Hearing Officer has no authority to do so.26

Parents nevertheless seek a determination from me that they are a “prevailing party” within the context of the BSEA litigation for purposes of later obtaining attorney fees in federal court. The Parents’ attorney fees claim is based on the IDEA which provides in relevant part:

In any action or proceeding brought under [section 1415 of the IDEA], the court, in its discretion, may award reasonable attorneys’ fees as part of the costs to the parents of a child with a disability who is the prevailing party .27

As is evident from this statutory language, determination of “prevailing party” status is an essential ingredient to making a successful claim for attorney fees.

The United States Supreme Court has explained that a party may be considered “prevailing” for purposes of attorney fees “if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.”28 The “touchstone” of this inquiry is “the material alteration of the legal relationship of the parties.”29

The United States Supreme Court has also made clear that the phrase “prevailing party” is a term of art.30 The First Circuit has noted that the phrase is to be interpreted and applied in the same manner as other federal fee-shifting statutes that use the same phraseology.31 The Court also explained that the inquiry is qualitative:

The party’s success cannot be a hollow victory; it must materially alter the litigants’ legal relationship by modifying one party’s behavior in a way that directly benefits the other. Thus, the change effected must be material; a purely technical or de minimis victory cannot confer prevailing party status. It follows from the foregoing that a court faced with the need to decide whether a litigant is (or is not) a prevailing party must make a qualitative inquiry into the import of the result obtained.32

It therefore seems apparent that the subsidiary issue of whether Parents are a prevailing party for purposes of 20 USC 1415(i)(3)(B) cannot be addressed simply through findings of fact by me or resolution by me of the merits of the dispute before the BSEA but rather requires a separate, “qualitative inquiry”, interpreting and applying a term of art as that term is used by the courts in federal fee-shifting statutes. I conclude that any determination of prevailing party status is properly considered part of the federal court’s original jurisdiction over attorney fees and therefore considered by the court in the first instance, rather than addressed through the BSEA dispute resolution process.

For these reasons, I decline to determine whether Parents are a prevailing party for purposes of their attorney fees claim.

ORDER

Nahant shall pay Parents $500.00 forthwith, as set forth in part B2 of this Decision.

Nahant shall provide monthly written status reports to Parents, as described in bold-faced type in part B4 of this Decision.

Parents’ remaining requests for relief (regarding statutory interest, tutorial bills, remedial orders and prevailing party status) are denied.

By the Hearing Officer,

William Crane

Dated: December 4, 2003

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

EFFECT OF BUREAU DECISION AND RIGHTS OF APPEAL

Effect of the Decision

20 U.S.C. s. 1415(i)(1)(B) requires that a decision of the Bureau of Special Education Appeals be final and subject to no further agency review. Accordingly, the Bureau cannot permit motions to reconsider or to re-open a Bureau decision once it is issued. Bureau decisions are final decisions subject only to judicial review.

Except as set forth below, the final decision of the Bureau must be implemented immediately. Pursuant to M.G.L. c. 30A, s. 14(3), appeal of the decision does not operate as a stay. Rather, a party seeking to stay the decision of the Bureau must seek such stay from the court having jurisdiction over the party’s appeal.

Under the provisions of 20 U.S.C. s. 1415(j), “unless the State or local education agency and the parents otherwise agree, the child shall remain in the then-current educational placement,” during the pendency of any judicial appeal of the Bureau decision, unless the child is seeking initial admission to a public school, in which case “with the consent of the parents, the child shall be placed in the public school program”. Therefore, where the Bureau has ordered the public school to place the child in a new placement, and the parents or guardian agree with that order, the public school shall immediately implement the placement ordered by the Bureau. School Committee of Burlington, v. Massachusetts Department of Education , 471 U.S. 359 (1985). Otherwise, a party seeking to change the child’s placement during the pendency of judicial proceedings must seek a preliminary injunction ordering such a change in placement from the court having jurisdiction over the appeal. Honig v. Doe , 484 U.S. 305 (1988); Doe v. Brookline , 722 F.2d 910 (1st Cir. 1983).

Compliance

A party contending that a Bureau of Special Education Appeals decision is not being implemented may file a motion with the Bureau of Special Education Appeals contending that the decision is not being implemented and setting out the areas of non-compliance. The Hearing Officer may convene a hearing at which the scope of the inquiry shall be limited to the facts on the issue of compliance, facts of such a nature as to excuse performance, and facts bearing on a remedy. Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief, including referral of the matter to the Legal Office of the Department of Education or other office for appropriate enforcement action. 603 CMR 28.08(6)(b).

Rights of Appeal

Any party aggrieved by a decision of the Bureau of Special Education Appeals may file a complaint in the state superior court of competent jurisdiction or in the District Court of the United States for Massachusetts, for review of the Bureau decision. 20 U.S.C. s. 1415(i)(2).

Under Massachusetts General Laws, Chapter 30A, Section 14(1), appeal of a final Bureau decision to state superior court must be filed within thirty (30) days of receipt of the decision.

The federal courts have ruled that the time period for filing a judicial appeal of a Bureau decision in federal district court is also thirty (30) days of receipt of the decision, as provided in the Massachusetts Administrative Procedures Act, M.G.L. c.30A . Amann v. Town of Stow , 991 F.2d 929 (1 st Cir. 1993); Gertel v. School Committee of Brookline , 783 F. Supp. 701 (D. Mass. 1992).

Therefore, an appeal of a Bureau decision to state superior court or to federal district court must be filed within thirty (30) days of receipt of the Bureau decision by the appealing party.

Confidentiality

In order to preserve the confidentiality of the student involved in these proceedings, when an appeal is taken to superior court or to federal district court, the parties are strongly urged to file the complaint without identifying the true name of the parents or the child, and to move that all exhibits, including the transcript of the hearing before the Bureau of Special Education Appeals, be impounded by the court. See Webster Grove School District v. Pulitzer Publishing Company , 898 F.2d 1371 (8th Cir. 1990). If the appealing party does not seek to impound the documents, the Bureau of Special Education Appeals, through the Attorney General’s Office, may move to impound the documents.

Record of the Hearing

The Bureau of Special Education Appeals will provide an electronic verbatim record of the hearing to any party, free of charge, upon receipt of a written request. Pursuant to federal law, upon receipt of a written request from any party, the Bureau of Special Education Appeals will arrange for and provide a certified written transcription of the entire proceedings by a certified court reporter, free of charge.


1

My general practice and the general practice of the BSEA is to decline to enter as a BSEA Order either a settlement agreement or stipulation of the parties. See, e.g., In Re: Boston Public Schools , BSEA # 03-0536, 9 MSER 18, 22 (2003); In Re: Rockport Public Schools , BSEA # 01-4954, 8 MSER 1, 3-5 (2002). I made an exception in this case for two reasons. The parties jointly requested that a BSEA order be entered incorporating their stipulation, and I concluded that the parties would not be able to resolve this matter informally without such an order.


2

Maroni v. Pemi-Baker Regional School District and Plymouth School District , 103 LRP 45934, U.S. Court of Appeals, First Circuit (October 9, 2003).


3

20 USC 1400 et seq .


4

MGL c. 71B.


5

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


6

See also BSEA Hearing Rule 14A which provides similar language.


7

See United States v. ITT Continental Baking Co ., 420 US 223, 238 (1975) (“a consent decree or order is to be construed for enforcement purposes basically as a contract”).


8

Alison H. v. Byard , 163 F.3d 2 (1 st Cir. 1998); D.R. v. East Brunswick Bd. Of Educ. 109 F.3d 896 (3d Cir. 1997); W. B. v. Matula , 67 F.3d 484 ( 3rd Cir. 1995).


9

Gomez v. Rodriguez , No. 02-1529 (1 st Cir. September 18, 2003):

Stipulations are best understood as the analogue of terms binding parties to a contract. Accordingly, the interpretation of a stipulation follows general contract law principles. [Internal quotation marks and citations omitted.]


10

An agreement is unambiguous when it is not reasonably subject to different interpretations. Alison H. v. Byard , 163 F.3d 2 (1 st Cir. 1998) (contract considered ambiguous only when the language “is reasonably prone to different interpretations. . .”); Citation Ins. Co. v. Gomez , 426 Mass. 379, 381 (1998) (“term is ambiguous only if it is susceptible of more than one meaning and reasonably intelligent persons would differ as to which meaning is the proper one”).


11

Alison H. v. Byard , 163 F.3d 2 (1 st Cir. 1998) (“where the wording of the contract is unambiguous, the contract must be enforced according to its terms”); Commercial Union Ins. v. Walbrook Ins. Co ., 7 F.3d 1047 (1st Cir. 1993):
(where contract language itself is unambiguous, “we must give the contract terms their plain meaning”); Schwanbeck v. Federal-Mogul Corp ., 412 Mass. 703, 706 (1992) (unambiguous agreement must be enforced according to its terms).


12

Nahant’s closing argument, 3 rd page (emphasis in original).


13

FDIC v. Singh , 977 F.2d 18 (1st Cir. 1992) (“Courts should not attempt to accomplish by judicial fiat what a party neglected to achieve contractually.”); Rogaris v. Albert , 431 Mass. 833, 835 (2000) (“not for the court . . . to suppose a meaning which the parties have not expressed”); Hakim v. Massachusetts Insurer’s Insolvency Fund , 424 Mass. 275, 281 (1997) (court must read a contract as written and is “not free to revise it”); Thibbitts v. Crowley , 405 Mass. 222, 226-227 (1989) (court may not change parties’ obligations under a consent judgment that spells out the terms of settlement “except upon (i) the parties’ further agreement or (ii) litigation of newly-emergent issues”).


14

E.g., Commercial Union Ins. v. Walbrook Ins. Co ., 7 F.3d 1047 (1st Cir. 1993):

The parties proffer extrinsic evidence relating to their own and each other’s subjective understandings and intentions, as support for their particular interpretations. Under Massachusetts law, however, extrinsic evidence may not be used to contradict the unambiguous terms of a contract. . . . [T]he contract language itself is anything but ambiguous. In such circumstances, of course, we must give the contract terms their plain meaning. [Internal citations omitted.]


15

E.g., Stevens v. Howe , 275 Mass. 398, 400 (1930) (“Mistake of one party is not sufficient. The mistake must be shared by both with respect to the same matter.”).


16

Perkins School for the Blind v. Rate Setting Commission , 383 Mass. 825, 835 (1981) (“G. L. c. 231, Section 6C … establishes the rate of interest to be applied only to judgments for pecuniary damages”).


17

E.g., In Re: Natick Pub. Schs., 6 Mass. Spec. Educ. Rep. 48 (BSEA 99-3852) (2000); In Re: Brockton Pub. Schs., 6 Mass. Spec. Educ. Rep. 17 (BSEA 00-2572) (2000). See also Frazier v. Fairhaven School Committee , 276 F.3d 52 (1st Cir. 2002) (“exhaustion of administrative remedies is advantageous even though the administrative process does not offer the specific form of relief [of monetary damages] sought by the plaintiff”).


18

New York and Mass. Motor Service, Inc. v. Mass. Commission Against Discrimination , 401 Mass. 566 (1988); College-Town, Division of Interco, Inc. v. Mass. Commission Against Discrimination , 400 Mass. 156 (1987).


19

New York and Mass. Motor Service, Inc ., supra, at 583; College-Town , supra, at 170.


20

Parents rely on Baxter Health Care Corp. v. Harvard Apparatus, Inc ., 35 Mass. App. Ct. 204, 207 (1993), in which the court concluded:

The judgment was correct in confirming the arbitrators’ award of interest on the payment due Bard at the rate of twelve percent per annum from the original closing date. Cf. G. L. c. 231, Section 6C. The arbitration agreement is silent on the point, but the award was within the inherent power of the arbitrators.


21

Occasionally, the courts have made an exception to this general rule. E.g., Bucks County v. De Mora, 37 IDELR 244 (E.D.Pa. 2002) (school district required to pay parent for time spent providing services to child). See also

Hurry v. Jones, 734 F.2d 879 (1st Cir. 1984) (allowing modest payment for time of parent and discussing distinction between reimbursement and damages).


22

Egg Harbor Township Board of Education v. S.O ., 19 IDELR 15 (D.N.J. 1992).


23

Barrington School District , 34 IDELR 80 (RI SEA 2000).


24

E.g., Curley v. Mobil Oil Corp ., 860 F.2d 1129 (1st Cir. 1988) (determination of “reasonable time” requires consideration of the circumstances of the dispute); Powers, Inc. v. Wayside, Inc. , 343 Mass. 686 (1962) (“What is a reasonable time depends on all the circumstances of the case.”); Murphy v. Gilchrist Co ., 310 Mass. 635 (1942) (“What is a reasonable time must be determined in view of the circumstances of each particular case and will vary widely in different types of cases.”).


25

See, e.g., Loretto v. US, 440 F. Supp. 1168 (E.D.Pa. 1977) (“an attempt to give a specific meaning to the word reasonable is trying to count what is not number, and measure what is not space”); Copylease Corp. of America v. Memorex Corp. , 403 F. Supp. 625 (SDNY 1975) (“the attempt to impose on the term “reasonable time” an absolute limit of 365 days is at odds . . . with the plain meaning of the word “reasonable,” in which the concept of flexibility inheres”).


26

In Re: Rockport Public Schools , BSEA # 01-4954, 8 MSER 1, 3 (2002).


27

20 USC 1415(i)(3)(B) (emphasis supplied).


28

Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).


29

Texas State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792-93 (1989).


30

Buckhannon v. West VA. DHHR , 532 U.S. 598, 615 (2001):
the word “prevailing” can have other meanings in other contexts: “prevailing winds” are the winds that predominate, and the “prevailing party” in an election is the party that wins the election. But when “prevailing party” is used by courts or legislatures in the context of a lawsuit, it is a term of art.


31

Maine School Ad. D. No. 35 v. Mr. and Mrs. R. , 321 F.3d 9 (1st Cir. 2003).


32

Id. (footnote and internal citations omitted) (emphasis supplied).


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