Natick Public Schools – BSEA # 09-4771



<br /> Natick Public Schools – BSEA # 09-4771<br />

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

In Re: Natick Public Schools

BSEA # 09-4771

RULING ON MOTION TO DISMISS

A. INTRODUCTION

On February 10, 2009, Parents, through their attorney, filed with the Bureau of Special Education Appeals (BSEA) their Hearing Request , seeking reimbursement for their unilateral placement of their son into two private programs.1

On March 20, 2009, Natick Public Schools (Natick) filed with the BSEA a Motion to Dismiss , taking the position that Parents’ claims for reimbursement should be denied because (1) Student was not eligible for special education services when Parents unilaterally placed their son and therefore tuition reimbursement must be denied under 20 USC 1412(a)(10)(C)(ii) of the Individuals with Disabilities Education Act (IDEA); (2) Parents did not provide the ten-day notice of intent to place unilaterally as required by the IDEA; and (3) Parents are improperly attempting to obtain tuition reimbursement as relief for alleged procedural violations.

On March 27, 2009, Parents filed their opposition, taking the position that Student previously received special education services from Natick and thereby satisfied the requirements of 20 USC 1412(a)(10)(C)(ii); Natick was not prejudiced by the Parents’ failure to give the full ten-day notice and Parents were justified in giving less than ten days notice; and Parents are not seeking tuition reimbursement as compensation for alleged procedural violations.

The BSEA held a telephonic motion hearing on March 31, 2009. For reasons explained below, the Motion to Dismiss will be denied.2

B. STANDARDS REGARDING NATICK’S MOTION TO DISMISS

BSEA Rules and the Executive Office of Administration and Finance Adjudicatory Rules of Practice and Procedure both provide that a Hearing Officer may allow a motion to dismiss if the moving party fails to state a claim upon which relief may be granted.3

Similarly, the federal courts have concluded that a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) may be allowed if the court finds “beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”4

Therefore, dismissal is inappropriate unless Parents (as the non-moving party) can prove no set of facts in support of their claims. The Hearing Officer must consider Parents’ claims based upon any theory of law and must consider the allegations in the Hearing Request to be true, as well as all reasonable inferences in the Parents’ favor.5

Where, as in the instant dispute, Natick is alleging additional facts on the basis of affidavits, its Motion to Dismiss becomes, in effect, a motion for summary decision. The Executive Office of Administration and Finance Adjudicatory Rules of Practice and Procedure, which are applicable to BSEA hearings, allow for summary decision when there is no genuine issue of fact relating to all or part of a claim or defense, and the moving party is entitled to prevail as a matter of law.6

Further guidance is found by turning to judicial rules regarding a motion for summary judgment, which rules set forth a standard substantially similar to the above-referenced adjudicatory rules. Federal Rule of Civil Procedure 56(c) provides that summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to a material fact and that the moving party is entitled to a judgment as a matter of law.” A “genuine” issue is one that could be resolved in favor of either party, and a “material fact” is one that has the potential of affecting the outcome of the case.7

I consider Natick’s Motion to Dismiss pursuant to these standards.

C. FACTS

In accordance with the above-described standards applicable to consideration of Natick’s Motion to Dismiss , the following facts assume that allegations in Parents’ Request for Hearing are true, and make all reasonable inferences in Parents’ favor.

Student, who is an 18-year-old young man, was first found eligible for special education services by Natick in June 2000 at the end of 4 th grade. Student’s eligibility has been based upon an emotional-neurological disability, poor organizational skills, poor writing skills, and weak processing speed. Student continued to receive special education services through the end of 10 th grade (June 2006).

As a result of Parents’ concerns regarding the appropriateness of an IEP developed at a June 1, 2006 IEP Team meeting, they requested mediation, which occurred on August 3, 2006. A mediation agreement was reached, which stated that “Natick agrees and confirms that [Student] is entitled to an IEP, but, in response to parental requests, will prepare an Individualized Curriculum Accommodation Plan (ICAP) ….” The ICAP was to include a detailed description of Student’s disability as well as educational services that included tutoring, regular meetings with an adjustment counselor, and progress reports to Parents regarding the tutorial sessions. The mediation agreement also called for further evaluation of Student to be completed by mid-October 2006.

In November 2006, Natick completed an educational assessment of Student, which concluded that Student required neither special education services nor a section 504 plan to be a successful student. By letter dated November 28, 2006 to the Natick Special Education Chair, Parents explained that they reviewed the educational assessment and disagreed with it. On February 15, 2007, an IEP Team meeting was held, during which Natick concluded that Student was no longer eligible for special education services. Parents’ recollection is that during the meeting, they disagreed strongly with that decision; Natick staff do not recall Parents’ disagreeing with the eligibility decision at that time. Natick subsequently sent Parents a School District Notification of Decision dated February 16, 2007, stating that Student had been found ineligible for special education. The Notification form included a statement that Parents were not satisfied with Natick’s evaluation that led to Natick’s eligibility decision.

In the spring of 2007, Parents became increasingly concerned regarding their son’s academic performance. Parents sent an e-mail to the Natick High School principal, expressing their concerns and reminding the principal of their disagreement (as reflected in their letter of November 28, 2006) with Natick’s assessment that led to a determination of ineligibility for special education. The principal responded by giving an update regarding Student’s academic progress, but did not otherwise offer assistance.

Parents soon concluded that their son required more assistance than Natick was willing to offer. Parents learned about the Adirondack Leadership Expedition Program in Saranac, NY and decided to place their son there beginning on June 19, 2007. On June 11, 2007, Parents hand-delivered a letter to Natick advising Natick that (1) Parents were removing their son from Natick High School because of Parents’ disagreement with Natick’s decision (as reflected in the February 16, 2007 Notification) that their son was not entitled to special education, (2) because of their son’s continuing emotional disability and need for specialized services, they were placing their son in the Adirondack Leadership Expedition Program effective June 19, 2007, (3) his anticipated stay in this program was 30 days and, depending on his status when he is ready to leave the program, “he may well require a subsequent placement in a therapeutic residential school,” (4) Parents were not giving the full ten-day notice to Natick because to do would likely result in “undue physical and emotional harm” to their son, and (5) Parents were seeking placement at public expense.

By letter of June 18, 2007, Natick responded to Parents that Natick continued to believe that Student was not eligible for special education and declined to fund Student’s placement. In the letter, Natick offered to meet with Parents.

Student remained in the Adirondack Leadership Expedition Program from June 19, 2007 to September 4, 2007. Shortly before September 4, 2007, Parents made the decision to send their son to the Island View Academy and Residential Treatment Center in Syracuse, Utah. On September 4, 2007, Parents faxed a letter to Natick advising Natick of their intent to place their son at this new program effective September 5, 2007 at public expense.

By letter of September 4, 2007, Natick responded to Parents that Natick continued to believe that Student was not eligible for special education and declined to fund Student’s placement. In the letter, Natick offered to meet with Parents.

D. DISCUSSION

At issue in this dispute is whether Parents are entitled to reimbursement of costs associated with their unilateral placements of their son, first, to the Adirondack Leadership Expedition Program on June 19, 2007 and, second, to the Island View Academy and Residential Treatment Center on September 5, 2007.

Through its Motion to Dismiss , Natick makes three arguments. First, it takes the position that Parents’ claims for reimbursement should be denied because Student was not eligible for special education services when Parents unilaterally placed their son and therefore tuition reimbursement must be denied under 20 USC 1412(a)(10)(C)(ii). Second, Natick argues that Parents did not provide the requisite ten-day notice of intent to place unilaterally. Finally, Natick takes the position that Parents are improperly attempting to obtain tuition reimbursement as compensatory relief for alleged procedural violations. I will consider each of these arguments.

Natick takes the position that the IDEA (specifically, 20 USC 1412(a)(10)(C)(ii)) precludes reimbursement. The text of this statutory section is:

If the parents of a child with a disability, who previously received special education and related services under the authority of a public agency , enroll the child in a private elementary or secondary school without the consent of or referral by the public agency, a court or a hearing officer may require the agency to reimburse the parents for the cost of that enrollment if the court or hearing officer finds that the agency had not made a free appropriate public education available to the child in a timely manner prior to that enrollment. [Emphasis supplied.]

Natick argues that the above statutory language precludes reimbursement because (1) Student has not received special education services since June 2006, (2) Student was found ineligible for special education in February 2007, and (3) Student continued to be ineligible for special education services at the time that his Parents unilaterally placed him in June and September 2007.

I do not read 20 USC 1412(a)(10)(C)(ii) so restrictively. The quoted and underlined statutory language (above) simply refers to students who “previously” received special education and related services. There is nothing within this language that expressly or implicitly requires that a student be receiving special education services at the time of, immediately prior to, or within a certain period of time prior to Parents’ unilateral placement in order that Parents be allowed reimbursement.

In support of its reading of the statute, Natick relies on the First Circuit’s decision in Greenland . In Greenland , the First Circuit described the issue in dispute as follows:

At issue in this case is whether the parents of Katie C. are entitled to reimbursement from the Greenland, New Hampshire School District for Katie’s tuition at a private special-needs school, the Learning Skills Academy, for part of the fifth grade and all of the sixth grade. Katie’s parents sought tuition reimbursement after having unilaterally removed Katie from Greenland Central School at the end of fourth grade and placed her in private school, without ever before raising with Greenland school officials the issue of special education services for Katie .8

The Court summarized its reasons for denying tuition reimbursement as follows:

These threshold requirements are key to this case: tuition reimbursement is only available for children who have previously received “special education and related services” while in the public school system (or perhaps those who at least timely requested such services while the child is in public school). There is no dispute that neither Katie’s parents nor anyone else requested an evaluation for Katie while she was at Greenland. There is also no dispute that she was removed from Greenland for reasons having nothing to do with any issue about whether Katie was receiving FAPE. Whether some of the techniques used for Katie in the regular classroom (such as the use of checklists) may also be techniques used in special education is beside the point. The point is that there was no notice at all to the school system before Katie’s removal from Greenland that there was any issue about whether Katie was in need of special education .9

In contrast to Greenland , Natick and Parents have had a long history of working together to address Student’s special education needs. Student received special education services from June 2000 to June 2006, and the parties agreed on August 3, 2006 that Student was entitled to an IEP even though special education services per se were not continued. Pursuant to an educational evaluation in November 2006, Natick determined in February 2007 that Student was no longer eligible for special education services. Parents communicated to Natick their disagreement with the educational evaluation upon which Natick’s eligibility determination was based.

In sum, prior to Parents’ removal of Student to a private placement in June 2007, Natick knew of Parents’ concerns regarding their son’s disability and its impact upon his education, Natick had many opportunities to consider whether Student had a disability and special education needs (and if so, what services should be provided), and Natick made a special education eligibility determination which then formed the basis of its denial of Parents’ requests for reimbursement. These facts distinguish the instant dispute from Greenland . And, there is nothing within the First Circuit’s analysis in Greenland that would extend the Greenland holding to these facts.

For these reasons, I conclude that Parents’ hearing request may not be dismissed on this basis.

In its second argument , Natick relies upon the ten-day notice provisions contained within 20 USC 1412(a)(10)(C)(iii). The statutory language reads as follows:

The cost of reimbursement described in clause (ii) may be reduced or denied–
(I) if–

(aa) at the most recent IEP meeting that the parents attended prior to removal of the child from the public school, the parents did not inform the IEP Team that they were rejecting the placement proposed by the public agency to provide a free appropriate public education to their child, including stating their concerns and their intent to enroll their child in a private school at public expense; or

(bb) 10 business days (including any holidays that occur on a business day) prior to the removal of the child from the public school, the parents did not give written notice to the public agency of the information described in item (aa) . . . . [Emphasis supplied.]

It is not disputed that Parents’ first notice letter (dated June 11, 2007) did not provide Natick with the requisite ten-days notice prior to the removal of their son to the Adirondack Leadership Expedition Program on June 19, 2007.

Parents take the position that although its second notice letter (dated September 4, 2008) did not provide ten-days notice for the unilateral placement to Island View Academy and Residential Treatment Center on September 5, 2007, their first notice letter (dated June 11, 2007) effectively notified Natick of the likelihood of this subsequent placement. Parents take this position on the basis of wording in the June 11, 2007 notice letter stating that when their son is ready to leave the Adirondack Leadership Expedition Program, “he may well require a subsequent placement in a therapeutic residential school.”

Failure to comply with the statutory notice requirement does not automatically preclude reimbursement. T he statute on its face,10 as well as BSEA decisions interpreting this statutory section,11 make clear that the Hearing Officer has discretion as to whether the Natick’s obligation to reimburse Parents should be reduced and, if so, by how much.

In exercising this discretion, I consider the equities.12 In so doing, I seek to understand the purpose of the statute and whether the purpose has been frustrated by Parents, with the result that Natick has been harmed. Just as the First Circuit has concluded that failure of a school district to follow IDEA procedures should have no legal consequence unless educational harm can be shown,13 so too Parents should not be penalized for failing to comply with a procedural requirement if their failure has not harmed Natick. For purposes of considering the equities, I also review the reasons that Parents did not give the full ten-day notice prior to each placement.

Through their Hearing Request , Parents have alleged sufficient facts to raise another statutory consideration, which is the following exception to the notice requirement:

Notwithstanding the notice requirement in clause (iii)(I), the cost of reimbursement …
(II) may, in the discretion of a court or a hearing officer, not be reduced or denied for failure to provide such notice if …

(bb) compliance with clause (iii)(I) would likely result in serious emotional harm to the child.14

As discussed earlier, the Natick’s Motion to Dismiss may be allowed only if Parents can prove no set of facts in support of their claims. Where Natick asserts additional facts, I also consider whether there are any disputes of material facts that would preclude resolution at this juncture.

Questions of equity as well as the question of whether Student would likely have been seriously emotionally harmed had Parents given the full ten-day notice are inherently issues of fact.

Through Father’s affidavit, Parents have shown that they may be able to establish facts at hearing demonstrating that they had good reasons for giving less than ten-days notice for both unilateral placements. Parents may also be able to establish facts at hearing demonstrating that their first notice letter (dated June 11, 2007) provided effective ten-day notice of Parents’ unilateral placement to Island View Academy and Residential Treatment Center.

Also, there are disputed material facts as to whether Natick was harmed by Parents’ notices. Through its affidavits, Natick has not indicated any actual harm as a result of Parents’ failure to give the full ten-days notice of placements prior to each placement, but Natick has nevertheless argued that harm occurred. Parents counter that before Student was removed, Natick had the opportunity “to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a free appropriate public education can be provided in the public schools” thereby satisfying the purposes of the ten-day notice provisions, and that Natick was therefore not harmed by the extent of Parents’ notices.15

I find that Parents may be able to establish at hearing sufficient facts to avoid elimination of their reimbursement claims on account of any failure to provide Natick with the requisite ten-day notices, and that there are material facts in dispute that can only be resolved through an evidentiary hearing. Accordingly, Parents’ hearing request should not be dismissed at this juncture for failure to comply with the IDEA’s ten-day notice provision.

Finally, I consider Natick’s argument that Parents have alleged procedural violations, that procedural violations, if established, might possibly result in a claim for compensatory services, but that reimbursement is not appropriate as a compensatory remedy. The short answer to this argument is that Parents are not seeking compensatory services. Their claims are based entirely upon their request for reimbursement as a result of their unilateral placements of their son in June and September 2007.

E. ORDER

For these reasons, Natick’s Motion to Dismiss is DENIED .

By the Hearing Officer,

William Crane

Dated: April 7, 2009


1

Parents were represented by Eileen M. Hagerty. Natick was represented by Kathleen E. Yaeger.


2

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


3

BSEA Rule 17B; 801 CMR 1.01(7)(g)3.


4

Judge v. City of Lowell , 160 F.3d 67, 72 (1st Cir. 1998) (quoting Conley v.Gibson , 355 U.S. 41, 45-46 (1957)).


5

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). See also Whitinsville Plaza, Inc. v. Kotseas , 378 Mass. 85, 89 (1979); Nader v. Citron , 372 Mass. 96, 98 (1977).


6

801 CMR 1.01(7)(h). These rules govern BSEA proceedings pursuant to 603 CMR 28.08(5)(b).


7

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986) .


8

Greenland School District v. Amy N ., 358 F.3d 150, 152 (1st Cir. 2004) (emphasis supplied) (footnote omitted).


9

Id. at 159-160 (footnotes omitted) (emphasis supplied).


10

20 USC 1412 (a)(10)(C)(iii)(II).


11

E.g., In Re: Cambridge Public Schools , BSEA # 09-0291, 14 MSER 336 (MA SEA 2008); In Re: Westfield Public Schools , BSEA # 08-6047, 14 MSER 208 (MA SEA 2008); In Re: Sharon Public Schools , BSEA # 06-1557, 106 LRP 53041, 12 MSER 252 (MA SEA 2006); In Re: Sudbury Public Schools , BSEA # 05-4726 and 05-4827, 106 LRP 287, 11 MSER 260 (MA SEA 2005).


12

See Diaz-Fonseca v. Commonwealth of Puerto Rico , 451 F.3d 13 (1 st Cir. 2006) (parent’s claim for reimbursement for expenses for private educational services involves an equitable remedy).


13

Roland M. v. Concord Sch. Comm., 910 F.2d 983, 994-95 (1st Cir. 1990).


14

20 USC 1412(a)(10)(C)(iv) (emphasis supplied).


15

In Greenland , the First Circuit described the purpose of the statutory notice provision as follows:

This [notice requirement] serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a free appropriate public education can be provided in the public schools

Greenland School District v. Amy N. , 358 F.3d 150, 160 (1st Cir. 2004) (footnote omitted).


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