Natick Public Schools – BSEA # 11-3131



<br /> Natick Public Schools – BSEA # 11-3131<br />

COMMONWEALTH OF MASSACHUSETTS

Division of Administrative Law Appeals

Bureau of Special Education Appeals

In Re: Natick School District

BSEA # 11-3131

RULING ON PARTIAL MOTION TO DISMISS

A. Introduction

Natick Public Schools (Natick) has filed a motion for partial dismissal of Parents’ claims. Specifically, Natick seeks to dismiss all of Parents’ claims relevant to the time period from September 2009 through the present when Student attended the Christa McAuliffe Regional Charter Public Middle School (McAuliffe). Natick also seeks to dismiss Parents’ claims for lost wages and time expended by Parents to develop a private program for Student. Parents filed an opposition to Natick’s motion, and oral arguments were heard during a telephonic motion hearing on December 23, 2010.1

Parents’ hearing request alleges that Natick committed procedural and substantive violations during the period from September 2008 through June 2009, resulting in a denial of FAPE. For relief, Parents sought, inter alia , reimbursement of private educational expenses during the 2008-2009 school year when Student last attended the Natick Public Schools, reimbursement for private educational testing, reimbursement for the supplemental educational costs of Student’s placement at McAuliffe (including costs of private tutoring, speech-language services, and transportation to and from McAuliffe), and reimbursement for the time that Father lost at work as a result of his researching, traveling, consulting, etc. for the purpose of creating Parents’ program for their daughter “due to Natick’s failure to provide [Student] with FAPE or any alternative options for her education.” Parents also sought attorney fees. Hearing Request, pages 20-21.

B. Motion to Dismiss Standards

Bureau of Special Education Appeals (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.2

Similarly, 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.”3

Therefore, dismissal is inappropriate unless Parents, as the non-moving party, can prove no set of facts in support of their claims. I will consider Parents’ claims based upon any theory of law and will consider the allegations in their hearing request to be true, as well as all reasonable inferences in Parents’ favor.4

C. Facts

The pertinent facts, taken from Parents’ hearing request (and attachments) together with reasonable inferences in Parents’ favor, are as follows:

1. Student, who is thirteen years old, has been diagnosed with an intellectual disability that impacts her receptive and expressive language. Beginning when she turned three years old, she was provided an individualized education program (IEP) by Natick under the Individuals with Disabilities Education Act (IDEA) and state special education law. Natick continued to provide Student with special education services through the 2008-2009 school year, which was Student’s 5 th grade. During this time, there were a number of disagreements between Parents and Natick, many of which focused on Parents’ requests that their daughter have greater inclusion with typical peers than was proposed by Natick.

2. On June 11, 2009, Natick convened an IEP Team meeting for the purpose of reviewing evaluation results and proposing summer services. As a result of this meeting, Natick proposed a draft IEP that was discussed at a second Team meeting on June 18, 2009.

3. In July 2009, Parents notified Natick that they were rejecting its proposed IEP for the summer of 2009 and the following school year.

4. In July 2009, Parents approached the McAuliffe School, which is a public charter school located in Framingham, MA, and inquired about their daughter attending McAuliffe for the next academic year (6 th grade).

5. In August 2009, McAuliffe agreed to accept Student with supplemental tutoring at parental expense, in addition to one hour per week of private speech-language services. Parents’ hearing request explains that “[a]t this point, the Parents felt that they had no other options. They were unable to find a private placement for [Student]. They believed [Student] was not receiving FAPE through the Natick [School District]. The Natick SD failed to respond to their request for out-of-district options. … The Parents decided to design their own program that would provide [Student] with FAPE at McAuliffe.” Hearing Request, pars. 38-39 on pages 9-10.

6. In August 2009, Parents notified Natick that their daughter would not be attending Natick’s proposed 6 th grade placement because she would be attending McAuliffe. In September 2009, Student transferred to McAuliffe where she attended 6 th grade.

7. Student has continued to attend McAuliffe through the present, where she is placed in inclusion classes for English language arts, math, science and social studies. Parents believe that at McAuliffe, their daughter is making effective progress, and is continuing to derive social and academic benefits from her educational program.

D. Claims from September 2009 Through the Present

Natick seeks to dismiss all claims relating to the time period from September 2009 through the present. Natick takes the position that McAuliffe is solely responsible for Student’s special education services during this time period. Parents disagree, arguing that Natick is responsible because of its failure to propose an appropriate IEP for 6 th grade, which left Parents no alternative other than to enroll their daughter at McAuliffe and to provide private, educational services necessary to supplement the regular education program at McAuliffe.

McAuliffe is a public charter school governed by MGL c. 71, § 89 and Massachusetts Department of Elementary and Secondary Education (DESE) regulations promulgated pursuant to this statute and found at 603 CMR 1.00 et seq . Pursuant to this statutory and regulatory scheme, McAuliffe is a “ Commonwealth charter school” and is therefore “considered a local education agency for all purposes.” See 603 CMR 1.02. Specifically with respect to its obligations to students with special education needs, McAuliffe “shall comply with chapters 71A and 71B” which is the state special education law, with the single exception “that the fiscal responsibility of a special needs student currently enrolled in or determined to require a private day or residential school shall remain with the school district where the student resides.” MGL c. 71, § 89 (s).

Similarly, the DESE special education regulations consider McAuliffe, because it is a public charter school, to be a “program school”. See 603 CMR 28.02 (16). The regulations further provide that, therefore, McAuliffe has “programmatic and financial responsibility for enrolled students” who have special education needs, except “when the Team determines that the student may need an out-of-district placement.” See 603 CMR 28.10(6).

On the basis of this legal framework and its applicability to McAuliffe, together with the undisputed fact that, while enrolled at McAuliffe, Student did not require a private day or residential school placement or other out-of-district placement, I find that once Student enrolled at McAuliffe in September 2009, Natick’s responsibility as Student’s local education agency (including its responsibility to educate Student prospectively and provide her with FAPE) ceased, and McAuliffe became Student’s local education agency for all purposes and was programmatically and financially responsible for educating Student, including providing her with any necessary special education and related services.

Parents argue otherwise.

Solely for purposes of the instant ruling on Natick’s motion for partial dismissal, I assume that Parents are correct that Natick failed to propose an appropriate IEP and placement for Student for 6 th grade (the 2009-2010 school year), thus putting Parents in the position of having to find or create an appropriate educational program for their daughter. Parents researched alternative placements and only found McAuliffe. Parents thus take the position, which again I credit only for purposes of this ruling, that although they never wanted their daughter to leave the Natick Public Schools, they were essentially forced to do so as a result of Natick’s conduct.

On the basis of these facts, Parents take the position that an exception should be made to the above-referenced statutory and regulatory scheme that places responsibility with McAuliffe as of September 2009. Parents have made it clear that they do not intend to seek relief from McAuliffe. Parents consider Natick, not McAuliffe, to be the culpable party that should be required to account for the repercussions of its constructively forcing Parents to seek an alternative educational placement.

Parents make an analogy to a situation where Parents are forced to enroll their daughter in a private special education school and then seek reimbursement from Natick because of the Public Schools’ failure to offer FAPE. I will assume, solely for purposes of the instant ruling, that with appropriate notice to Natick, Parents could have unilaterally placed Student into an appropriate, private special education program and would have then been entitled under the IDEA to reimbursement from Natick for their out-of-pocket expenses relevant to the private placement.

Within this context of a unilateral private placement, it is not disputed that Natick would remain the responsible local education agency while the student is educated privately. Thus Natick would have retained ultimate responsibility for Student’s special education. However, the critical difference is that in the instant dispute, because McAuliffe is a public charter school, McAuliffe became the local education agency with financial and programmatic responsibility for educating Student as of September 2009. Instead of agreeing to provide privately the supplemental tutoring and speech-language therapy, Parents could have sought McAuliffe to provide whatever special education and related services would be necessary for Student to receive FAPE.

A more apt (but not perfect) analogy to the present dispute would be a situation where parents move to another school district after having been unable to persuade the original school district (in this case, Natick) to offer an appropriate IEP. The new school district then becomes the responsible local education agency.

Parents argue that in this analogous situation as well as in the instant dispute, Natick may be held accountable if it can be shown that it caused Parents to remove their daughter from the Natick Public Schools. Although I understand that there is a commonsense argument of causation, I am aware of no legal basis for shifting responsibility back to Natick for prospective educational services, once Natick is no longer the local education agency.

In sum, Parents’ claims against Natick may only be considered for the period of time when Natick was Student’s responsible local education agency. This responsibility ceased in September 2009. Therefore, any claims against Natick relevant to the time period from September 2009 through the present will be dismissed.5

E. Parents’ Additional Claims

Natick also seeks dismissal of Parents’ claims for lost wages and time expended for purposes of the Parents’ researching and developing private educational services for Student. For purposes of this ruling only, I credit Parents’ allegations that Father spent considerable time (and as a result lost the opportunity to earn wages) researching and developing private educational services for Student, and that this was caused by Natick’s failure to offer an appropriate IEP for 6 th grade. Parents concede that the BSEA may not have the authority to compensate Parents for lost wages and time expended, but seek to preserve their ability to establish facts supporting these claims for purposes of later persuading a court to award monetary damages.

In order for the BSEA to have a fact-finding role relevant to a damages claim so that Parents can survive a motion to dismiss, Parents must have an underlying, viable legal claim (that could be enforced by a court) if certain, alleged facts can be established.6 The authorities relied upon by Parents focus on a parent’s right to seek reimbursement for out-of-pocket expenses attributable to privately-obtained educational services—for example, tuition and transportation costs. Parents have pointed to no legal authority that supports a claim relative to Parents’ lost wages or time spent by Parents for purposes of identifying and developing an appropriate educational program, and I am not aware of any. Therefore, these claims will be dismissed.

F. Order

For these reasons, Natick’s motion for partial dismissal of Parents’ claims is ALLOWED in that Parents’ claim that Natick was responsible for providing prospective special education and related services to Student from September 2009 through the present and Parents’ claims regarding lost wages and time expended by Parents to develop a private program for Student are DISMISSED .7

By the Hearing Officer,

_________________

William Crane

Date: December 28, 2010


1

Natick also seeks dismissal of any claims outside the two-year statute of limitation—that is, prior to November 17, 2008. Parents’ response makes clear that they are not making claims for any time prior to November 17, 2008. Natick also seeks dismissal of any claims relevant to attorney fees. It is not disputed that the BSEA does not have jurisdiction to award attorney fees, and any fact finding necessary to form the basis of an attorney fees claim would occur within the normal course of adjudicating Parents’ IDEA claims. See In Re: Rockport Public Schools , BSEA # 01-4954, 8 MSER 1, 3 (2002). Accordingly, I will not further address these parts of Natick’s motion for partial dismissal.


2

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


3

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


4

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).


5

The BSEA reached the same conclusion in another dispute. See In Re: Brian , BSEA # 07-4615, 14 MSER 39 (Marblehead School District, February 11, 2008).


6

See Frazier v. Fairhaven School Committee , 276 F.3d 52, 69 -70 (1 st Cir. 2002) (holding that plaintiffs cannot proceed with a section 1983 claim based upon alleged IDEA violations without first having exhausted the BSEA’s administrative process for purposes of fact-finding, but, at the same time, dismissing plaintiffs’ claims under Title IX and FERPA because no relief could be granted under these statutes).


7

This ruling does not effect any claims for compensatory services or for reimbursement of Parents for out-of-pocket expenses incurred during the period of time when Natick was the responsible local education agency, assuming that Parents can establish sufficient facts supporting their claims. Natick does not disagree.


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