Parul and Lynn Public Schools – BSEA #03-5516



<br /> Parul and Lynn Public Schools – BSEA #03-5516<br />

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

In re: Parul1 & Lynn Public Schools

BSEA #03-5516

RULING ON MOTIONS

This matter comes before the Bureau on the Motions of the Lynn Public School to Dismiss Claims Arising Prior to June 16, 2000, and for Judgment on the Pleadings, and the Student’s Opposition thereto. A brief summary of the factual and procedural background of this matter is in order.

Factual Background

Parul is an eleven year old student with complex medical and special learning needs. She has been diagnosed with mental retardation, spastic quadriparesis and seizure disorder. She functions globally on a one to two year old level. Parul resides with her mother in Lynn, MA. Her mother is monolingual in Spanish. Parul has received special education services through the Lynn Public Schools at all times pertinent to this dispute. All IEPs proposed for Parul by Lynn have been accepted and implemented. During the 2003-2004 school year Parul has attended the Kennedy Day School of the Franciscan Children’s Hospital under an accepted IEP. There is no current placement dispute.

Procedural Background

On June 24, 2003, the Student requested an expedited hearing before the Bureau alleging that she would be without necessary special education services during the summer, 2003, despite the Team’s agreement that she needed full year educational programming. A hearing was scheduled for June 7, 2003. The Student requested a postponement of that date asserting that the emergency placement issues were close to resolution. The parties submitted status reports and requested that a prehearing conference be scheduled for September 5, 2003. The prehearing conference was held by telephone. The Student asserted that current programming issues had been largely resolved, but that she would be seeking discovery on compensatory claims for prior denials of FAPE.

On October 7, 2003, the School submitted a Motion to Dismiss Claims Arising Prior to June 16, 2000, asserting that any such claims are barred by the three year Statute of Limitations. On October 10, 2003, the School submitted a Motion for Judgment on the Pleadings with regard to Compensatory Education, asserting that the Parent participated in the development of all prior IEPs, which had been accepted and implemented and that therefore there was no basis for a compensatory education claim. On October 14, 2003 the Student filed an Opposition to the Motion requesting imposition of the three year Statute of Limitations arguing that the Statute of Limitations on both the federal and state claims should be tolled during the Student’s minority. On November 24, 2003 the Student filed an Opposition to the School’s Motion for Judgment on the Pleadings, arguing that BSEA rules require only simple notice pleadings and that conformance to that requirement will not support a Judgment on the Pleadings. In addition, the Student averred that disputes about issues of material fact exist between the parties which, if resolved in the Student’s favor, would entitle her to the requested relief. The School submitted a Reply Memorandum on November 28, 2003. Oral arguments were made on the Motions on December 4, 20032 .

1. Motion to Dismiss Claims Arising Prior to June 16, 2000.

This matter concerns claims that are entirely compensatory in nature. The School seeks to limit an examination of those claims to the three year period immediately preceding the Student’s request for a hearing to determine the appropriateness of Lynn’s 2003-2004 IEP. The Student argues that to apply a three year statute of limitations to both her federal and state claims would unjustly emphasize one IDEA goal, the prompt resolution of disputes, over another goal, ensuring a quality education to students with disabilities. The Student argues that any statute of limitations should be tolled until the student loses eligibility for special education services at age 22.

This issue has been addressed previously by the Bureau. In an exhaustive and thoughtful decision Hearing Officer William Crane explained the development and application of the three year statute of limitations in administrative actions seeking compensatory education under the IDEA and Section 504. See : In Re Fall River Public Schools , 5 MSER 183 (1999). He considered whether application of the three year statute of limitations should be tolled during the Student’s minority. He found that permitting tolling would undercut federal policy encouraging prompt assertion of student educational rights. He also found congruence in parent and student interests protected by the IDEA. Therefore Hearing Officer Crane determined that application of the Massachusetts tolling statute3 to IDEA and section 504 claims would be inappropriate. I find no reason on these facts to reach a different conclusion. Furthermore the parties have pointed to no development in jurisprudence since the Fall River decision that would persuade me that the Hearing Officer’s analysis in that case is no longer sound. See also : Ms. M. v. Portland School Committee, 360 F3d 267, 273-4 n.5 (1 st Cir. 2004) Nieves-Marquez v. Commonwealth of Puerto Rico , 353 F3d 108, 118-119, n.8 (1 st Cir. 2003); DOE v. Town of Bourne , CA 02-11363, Memorandum and Order, May 28, 2004 Woodlock, J. (D.Mass) (See in particular p. 27 n. 20) In Re: Carver Public Schools , 7MSER 167 (2001).

The Student argued that, at a minimum, the Massachusetts tolling statute should be applied to the Massachusetts special education law, pointing out that the legislature has had every opportunity to exempt the provisions of M.G.L. c. 71B from the general rule permitting tolling of civil claims until majority but has not done so. I find, however, that the federal and state statutory and regulatory schemes governing the education of students with disabilities are complementary and inextricably intertwined. Though there may be an odd provision in one law or the other that yields a different outcome when applied to a particularly unique fact pattern, for the most part the laws are designed to be read and applied in concert to achieve consistent and predictable results. To select out those few provisions of Massachusetts law which do not precisely mirror the IDEA and apply the Massachusetts tolling provision to them seems an exercise in pedantry at best, and inequity at worst. Noting Hearing Officer Crane’s findings in Fall River that application of tolling principles in the special education arena would not yield any particular benefit to the students and would not be consistent with the forward thinking model of the IDEA and M.G.L. c. 71B, I decline to split Massachusetts special education law from its Federal twin for the purpose of applying M.G.L. c. 260 Sec. 7. Therefore, I find that Lynn’s Motion to Limit the Student’s Compensatory Education Claims to those Arising after June 16, 2000, should be Granted.

2. Motion for Judgment on the Pleadings.

In support of its Motion to Dismiss the Student’s compensatory education claims
the School asserts that the Bureau could not order any relief to the Student where, as here, the parent had participated in the development of and had accepted all the student’s IEPs, and the school had implemented them. The Student argued that both the parent’s participation in the IEP process and the school’s implementation were disputed questions of fact. Where questions of fact exist, dismissal of IDEA and Section 504 claims is inappropriate. Nieves-Marquez v. Puerto Rico , 353 F3d 108, 118-119 n.8 (1 st Cir. 2003) I agree.

Clearly under the facts agreed to thus far, the parent has a very difficult path of
proof. To establish a claim for compensatory education a student must prove an egregious procedural or substantive violation of the student’s right to a free, appropriate public education leading directly to a deprivation of an educational benefit. Maine Sch. Admin. Dist. No.35 v. Mr. And Mrs. R. , 321 F. 3d 9 (1 st Cir. 2003): Pihl v. Mass. Dept. of Education , 9 F 3d 184 (1 st Cir. 1993); cert. den’d , 499 U.S. 912 (1991). Further, where there is a showing that parent knowingly accepted an IEP on behalf of a student, and did not object to its implementation during its term, a claim for compensatory services, grounded as it is in equity, will not lie. See: Arlington Public Schools , 8 MSER 133 (2002) aff’d sub nom Adam Aloise v. Arlington Public Schools 9 MSER 282 (D. Mass. 2003)

Though the hurdles are high, the facts in this matter remain to be developed. The Bureau’s rules do not require an appeal to be fully documented at the prehearing stage. Whether the Student’s claim for compensatory education is supportable can be determined with finality by the Bureau only after an evidentiary hearing.

There being no requirement for “pleadings” other than that which is necessary for reasonable notice of the parties and nature of the dispute, dismissal for failure to plead in a particular fashion or with certain proof, is not permissible. The School’s Motion for Judgment on the Pleadings then is not proper.

ORDER :

The Motion of Lynn Public Schools for Judgment on the Pleadings is DENIED . The Motion of Lynn Public Schools to Dismiss Claims Arising prior to June 16, 2000, is GRANTED . The parties shall:

1. complete all prehearing discovery no later than July 30, 2004;

2. reserve September 14, 2004 for a prehearing conference.

___________________________

Lindsay Byrne,


1

“Parul” is a pseudonym selected by the Hearing Officer to preserve the privacy of the Student in publicly accessible documents.


2

The Hearing Officer would like to acknowledge that the arguments and briefs submitted by counsel for both parties were well reasoned, well written and helpful.


3

M.G.L. c. 260 Sec. 7


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