Re: George and Boston Public Schools – BSEA# 04-2506



<br /> Re: George and Boston Public Schools – BSEA# 04-2506<br />

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

In Re: George1 and Boston Public Schools BSEA # 04-2506

RULING ON REQUEST TO DELAY ADMINISTRATIVE PROCEEDINGS

Boston Public Schools (Boston) filed a request that the Bureau of Special Education Appeals (BSEA) delay the scheduling of an evidentiary Hearing regarding the merits of Parent’s claims, so that Boston may pursue its interlocutory appeal to federal court without completing the BSEA administrative proceedings. I now determine whether to allow this request.

A. PROCEDURAL HISTORY

On July 30, 2004, I issued a ruling on Parent’s Motion for Partial Summary Decision (Ruling). The issue before me at that time was whether Boston had violated Student’s rights by determining administratively (without participation of Parent or the IEP Team) Student’s placement at the Jackson Mann School. The Ruling found in favor of Parent, concluding that Boston had violated certain procedural protections found in state and federal special education law and regulation.

The Ruling also directed Parent to file a status report for the purpose of advising whether further BSEA proceedings were needed to bring final resolution to Parent’s claims. By letter of September 13, 2004, Parent notified me that she had initiated settlement discussions with Boston and was awaiting Boston’s response. In a subsequent status report dated September 22, 2004, Parent advised me that Boston did not intend to engage in settlement discussions regarding Parent’s compensatory claims and requested that Hearing dates be scheduled. The BSEA then began the process of scheduling Hearing dates with the parties.

By letter of September 27, 2004 to the Hearing Officer, Boston requested that the BSEA not schedule Hearing dates at this time. Boston indicated in its letter that it had filed a complaint with the United States District Court for the District of Massachusetts, appealing the Ruling. Boston also made clear its intent to seek from the federal court a stay of the BSEA proceedings, if necessary.

By Order of September 27, 2004, I scheduled written arguments to be received by October 5, 2004 regarding Boston’s request for delay of the BSEA proceedings. In my Order, I indicated that no Hearing dates would be scheduled until I had addressed Boston’s request for delay. Parent then requested two postponements of the October 5 th deadline, which were agreed to by Boston and allowed by me, with the result that written arguments were due by October 19, 2004.

By letter of October 12, 2004, Boston advised me that it intended to file a motion in federal court seeking a stay of the BSEA proceedings. Boston indicated that it would likely file the motion on or before October 22, 2004.

B. DISCUSSION

Boston is seeking to overturn the Ruling through an appeal to federal court. In order to proceed with its federal appeal without completing the BSEA administrative proceedings, Boston has requested a delay (i.e., a stay) of the BSEA proceedings.

When considering whether to grant a request for stay, the federal courts have generally been guided by the same standards that apply to an application for preliminary injunctive relief — that is, a court balances the following four factors: (1) likelihood that the moving party will prevail on the merits of its claim; (2) likelihood that the prevailing party will suffer irreparable harm if the stay is not granted; (3) likelihood of harm to other interested persons if the stay is granted; and (4) the public interest in granting (or denying) the stay.2 When considering a stay within the context of a special education dispute, federal courts have also used this preliminary injunction standard.3

I will consider these factors below, except that in lieu of determining the likelihood of Boston prevailing in federal court on the merits, I will consider the question of whether the federal court has jurisdiction over Boston’s interlocutory appeal.

1. Jurisdiction over Boston’s Interlocutory Appeal .

The United States Supreme Court has stated: “The strong presumption is that judicial review will be available only when agency action becomes final”.4 Agency action is considered “final” when the following two criteria are satisfied:

First, the action must mark the “consummation” of the agency’s decision-making process — it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which “rights or obligations have been determined,” or from which “legal consequences will flow.”5

The Ruling, from which Boston has appealed to federal court, does not meet the Supreme Court’s two criteria for a “final” action of the BSEA for the following reasons.

The Ruling addressed the issue of whether Boston had violated Student’s rights under special education law and regulation by determining administratively (without participation of Parent or the IEP Team) Student’s placement at the Jackson Mann School. The Ruling found (at page 17) that Boston had violated these statutory and regulatory procedural protections. The Ruling further found (at page 17) that a meeting to determine Student’s placement to a new school should have occurred no later than ten school days after the April 1, 2003 IEP Team meeting when it was agreed that a change of placement was necessary.6 Instead, in January 2004 (approximately nine months after the April 1 st Team meeting), Boston notified Parent of Student’s placement to his new school.

On the basis of my Ruling, Parent claims that Boston’s procedural violations resulted in Student’s being in an inappropriate placement for a significant period of time, and is due compensatory services.

Parent has raised several other compensatory claims that are unrelated to the Ruling. Parent takes the position that Student was out of school for the month of September 2004 due to Boston’s alleged failure to provide the requisite transportation and related services, and is entitled to compensatory services to make up for this alleged loss of educational services. Parent also has compensatory claims based upon Boston’s alleged failure to provide appropriate special education and related services to Student for a period of time immediately after Student turned three years old.

The substantive issue in the present dispute before the BSEA is whether Boston owes Student compensatory education services for some or all of these alleged procedural and substantive violations, and, if so, in what amount and kind. In order to answer these questions, I must first determine what violations of Student’s rights may have occurred (beyond what has already been determined in the Ruling) and what educational harm, if any, Student has suffered as a result.7 I must then determine what compensatory education services would be appropriate in order to make Student whole for the harm, if any, that has occurred.8 As part of this determination, I must also consider the equities.9 Only then would the BSEA decision-making process be completed, and only then would a determination be made regarding Parent’s rights (if any) and Boston’s obligations (if any) with respect to the compensatory claims. Accordingly, there has not yet been any “final” action by the BSEA.

The federal special education statute provides that Boston is entitled to appeal a BSEA decision to federal court, as well as to a state court of competent jurisdiction.10 There is nothing within this statutory scheme that would rebut the “strong presumption” against an interlocutory appeal of a BSEA ruling.

To the contrary, the federal and Massachusetts statute and regulations indicate that an appeal should only occur after a final decision of the Hearing Officer. The federal special education statute makes clear that the administrative decision by a BSEA Hearing Officer, from which a court appeal may be taken, is a “final” decision.11 Pursuant to Massachusetts statute and regulation, an appeal of a BSEA decision is allowed only after a final decision on the merits.12 Similarly, the administrative procedure regulations governing BSEA proceedings provide that if a party prevails on part of her claim and the ruling is not “dispositive of the case”, then further administrative proceedings are to be held on the remaining issues.13

Under federal law, however, there is an exception, known as the collateral order doctrine, through which a party may appeal an interlocutory ruling to federal court. In a recent decision, the First Circuit Court of Appeals decided, as a matter of first impression, that the collateral order doctrine applies to a federal court appeal of an interlocutory ruling by an administrative agency.14

I now consider whether my Ruling qualifies as an immediately appealable agency action under the collateral order doctrine. The First Circuit explained that to fall within this doctrine, each of the following three conditions must be met: the ruling must “conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment.”15 I will review each condition in turn.

The first condition of the collateral order doctrine (conclusively determine the disputed question) is satisfied. The disputed procedural questions, which were the subject of the Ruling, have been conclusively decided by the BSEA.

The second condition of the collateral order doctrine (resolve an important issue completely separate from the merits of the action) is not satisfied. The merits of the action are Parent’s compensatory claims. The Ruling determined that Boston had committed certain procedural violations. Parent bases her compensatory claims, in part, upon these procedural violations. Accordingly, the Ruling may be considered to have addressed an issue that is intertwined with and not “completely separate” from the merits of the action.16

The third condition of the collateral order doctrine (be effectively unreviewable on appeal from a final judgment) is also not satisfied. As noted above, the findings and conclusions of the Ruling would be reviewable through an appeal to federal or state court, subsequent to a BSEA decision regarding the merits of Parent’s compensatory claims.17

The First Circuit has “equated a showing of effective unreviewability with a showing of irreparable harm arising out of the postponement of appellate review.”18 I consider in a separate section, below, the harm that Boston may suffer if it is not allowed to pursue its interlocutory appeal, and conclude that there would not be irreparable harm to Boston.

For these reasons, I find that the second and third of the three conditions required under the collateral order doctrine are not satisfied. I conclude that the federal court would not likely find that it has jurisdiction over Boston’s interlocutory appeal.

2. Harm to Boston if the Request for Delay is not Granted .

In requesting a delay in the BSEA administrative Hearing on the merits of Parent’s claims for compensatory education, Boston argued that such a Hearing would be “premature and could be rendered moot depending on the decision rendered by the U.S. District Court.”19 If required to return to the BSEA for a Hearing on Parent’s compensatory claims, Boston’s harm would be the costs of litigating what would likely be a two-day evidentiary Hearing in order to complete the administrative proceedings. This is the only harm which Boston has alleged.

The First Circuit has made clear that this kind of cost (that inevitably results from the general rule requiring completion of the administrative appeals process) is not legally significant for purposes of requesting an interlocutory appeal:

To say that Rhode Island’s interests will not be irretrievably prejudiced in the absence of an immediate appeal is not to say that postponing review until the occurrence of final agency action is cost-free. By refusing to intercede at this stage, we introduce the prospect of duplicative proceedings should the denial of intervention eventually be deemed improvident. That sort of cost is real, but it is an almost inevitable byproduct of the finality rule in ordinary litigation as well as in administrative adjudication . Cf. R.R. Donnelley & Sons Co. v. FTC , 931 F.2d 430, 431 (7th Cir. 1991) (“If the cost, delay, and aggravation of litigation made an order final, the distinction between interlocutory and final decisions would collapse, and courts of appeals would be deluged.”). The finality requirement embodies a “preference that some erroneous trial court rulings go uncorrected until the appeal of a final judgment, rather than having litigation punctuated by piecemeal appellate review.” Richardson-Merrell, 472 U.S. at 430 (citation and internal quotation marks omitted). This case is no exception.20

There is a second potential cost, although not alleged by Boston – this is the possibility that a BSEA evidentiary Hearing will result in an order requiring Boston to provide compensatory services to Student and after some or all of these services have been provided by Boston, a federal court might find that Boston should not be required to provide them. There are three responses to this. First, Boston could seek to obtain a stay if such a final order is issued by the BSEA.21 Second, the potential harm to Boston would be essentially the same as in any BSEA proceeding which may result in an order for services which might later be reversed by a court. If the harm would be sufficient to justify a delay in the present dispute, it would likely be sufficient to justify a delay in any other BSEA proceeding, and thereby undermine the “strong presumption” in favor of allowing the BSEA proceedings to be completed prior to a court appeal.22 Third, the potential harm to be suffered by Boston is economic. Federal courts have concluded that economic loss does not constitute irreparable harm.23

I conclude that no irreparable harm would occur if Boston’s request to delay the BSEA proceedings is denied.

3. Harm to Student if Request for Delay is Granted .

Parent seeks compensation from Boston for allegedly maintaining Student in an inappropriate placement and providing inappropriate educational services to her son. At this point in the proceedings, it would be premature to make any assumptions regarding the merits of Parent’s claims. However, for purposes of this analysis only, I consider Parent’s claims and requested relief in order to assess what harm may occur if a delay of the BSEA proceedings were granted.

The present case involves compensatory claims, and therefore may be distinguished from those disputes where parents have alleged that their son or daughter is currently in an inappropriate placement, and the BSEA proceedings are necessary in order that appropriate services be provided. In those cases, courts have concluded that even a temporary loss of appropriate educational services may constitute irreparable harm.24

Similar concerns would apply in the case at bar in that Parent is taking the position that inappropriate placement and services have been provided in the past and compensatory education is now required. Compensatory services are essentially a remedy designed to make a student whole – that is, to make up for what was lost as a result of not having received the requisite services or placement.25 Parent intends to seek compensatory services in the form of an extended day program, a private extended year program and services during times when school is not in session. At the BSEA evidentiary Hearing, Parent will seek to demonstrate that these services are necessary in order to make up for what she believes has been a significant negative impact from Student’s remaining in an inappropriate placement for a significant period of time, and that compensatory services should be in place as soon as possible to ameliorate this harm.26 I find, based on these representations, that there is at least the possibility that significant harm may occur to Student the longer any compensatory relief is delayed.

Parent and Student also have a significant due process interest in a timely resolution of this dispute before the BSEA. The regulations implementing the federal special education law (which govern the BSEA proceedings) set forth time frames of 45 days (after receipt of a Request for Hearing) for a final BSEA decision following a hearing, with the hearing officer having the authority to extend this timeline.27 The state special education regulations further provide for a hearing to be held within 20 days after receipt of a Request for Hearing.28 Parent may, as she has done in this case, seek to delay these timeframes through postponement requests and through her Motion for Partial Summary Decision . But, it is another matter to allow Boston to postpone the BSEA proceedings for an indefinite period of time in order to allow the federal appeal, and thereby delay any compensatory services to which Student may be entitled.29

I conclude that Student (and his Parent) may incur substantial harm if the BSEA administrative proceeding is significantly delayed.

4. Public Interest .

Pursuant to state and federal special education law, there is a significant public interest in ensuring that eligible students receive appropriate special education and related services to which they are entitled.30 The First Circuit has been particularly sensitive to this public interest when the child is relatively young (Student’s date of birth is 10/22/97): the defendants’ position would produce long delays, contrary to IDEA’s policies favoring prompt resolution of disputes in order to expedite the provision of FAPE

to children who may be at a formative stage of their intellectual development.31

This interest is best served through timely consideration and resolution by the BSEA of Parent’s claims for compensatory services.

C. CONCLUSION

For these reasons, Boston’s request to delay an evidentiary Hearing regarding Parent’s compensatory claims is DENIED. The BSEA will proceed to schedule an evidentiary Hearing regarding Parent’s claims.

By the Hearing Officer,

_________________

William Crane

Dated: October 22, 2004


1

“George” is a pseudonym selected by the Hearing Officer to protect the privacy of the Student in publicly available documents.


2

Hilton v. Braunskill , 481 U.S. 770, 776, 107 S.Ct. 2113, 2119 (1987); AT&T Co. v. Winback & Conserve Program, Inc ., 42 F.3d 1421, 1427 (3 rd Cir. 1994); Reed v. Rhodes , 549 F.2d 1046, 1048 (6 th Cir. 1976); Canterbury Liquors & Pantry v. Sullivan , 999 F.Supp. 144 (D.Mass. 1998); Buntzman v. Springfield Redevelopment Authority , 918 F.Supp. 29 (D.Mass. 1996).


3

Borough of Palmyra Board of Education v. F.C ., 2 F.Supp.2d 637 (D.N.J. 1998); Beth Ann Brown v. Wilson County School Board , 17 IDELR 676 (U.S. Dist. Ct., M.D. of Tenn. 1991).


4

Bell v. New Jersey , 461 U.S. 773, 778 (1983).


5

Bennett v. Spear , 520 U.S. 154, 177-178 (1997) (internal citations omitted).


6

The Ruling inadvertently omitted the words “ten school”, referring instead only to “days”. The Ruling, however, cited to 603 CMR 28.06(2)(e) which makes clear that the requisite meeting must occur no later than ten school days after the April 1, 2003 Team meeting.


7

Not all violations result in compensatory services being awarded. See, e.g., Houston Independent School District v. Bobby R. , 200 F.3d 341 (5 th Cir. 2000) (to prevail, parent must show more than a de minimus violation).


8

Pihl v. Mass. Dept. of Ed. , 9 F.3d 184 (1 st Cir. 1993) (“compensatory education is available to remedy past deprivations” . . . The IDEA “may require services at a future time to compensate for what was lost”).


9

Equitable considerations (including the conduct of both parties) may become relevant to a determination of whether compensation is due and what, if any, compensation should be provided. See, e.g., Student W. v. Puyallup Sch. Dist. No. 3 , 31 F.3d 1489 (9 th Cir. 1994) (fact-specific analysis used to determine equitable remedy in compensatory education dispute); Murphy v. Timberlane , 973 F.2d 13 (1 st Cir. 1994) (equitable considerations are relevant to a compensatory education dispute); Everett v. Santa Barbara High Sch. Dist ., 32 IDELR 175 (C.D.Cal. 2000) (applying equitable considerations to a compensatory education claim).


10

20 U.S.C. 1415(i)(2)(A).


11

20 U.S.C. 1415(i)(1)(A).


12

MGL c. 30A, s. 14 (providing an appeal only from a “final decision” of an agency); 801 CMR 1.01(13) (appeal allowed from a “final decision” of the agency) made applicable to BSEA proceedings through 603 CMR 28.08(5)(b).


13

801 CMR 1.01(7)(h), made applicable to BSEA proceedings through 603 CMR 28.08(5)(b).


14

State v. United States Envtl. Protection Agency , 04-1513 (1st Cir. 2004).


15

State v. United States Envtl. Protection Agency , 04-1513 (1st Cir. 2004), quoting Coopers & Lybrand v. Livesay , 437 U.S. 463, 468 (1978).


16

Compare, for example, a ruling on the issue of whether a party should be allowed to intervene in the administrative proceedings – an issue which is separable from the merits of the underlying proceeding. State v. United States Envtl. Protection Agency , 04-1513 (1st Cir. 2004).


17

20 U.S.C. 1415(i)(2)(A).


18

State v. United States Envtl. Protection Agency , 04-1513 (1st Cir. 2004).


19

Letter from Boston’s attorney to the Hearing Officer, dated September 27, 2004.


20

State v. United States Envtl. Protection Agency , 04-1513 (1st Cir. 2004).


21

BSEA Hearing Rule 13B (a party seeking a stay of a BSEA decision is to seek a stay in the court having jurisdiction over the appeal).


22

See footnote 4, above, and accompanying text.


23

Aciero v. New Castle County , 40 F.3d 645, 653 (3 rd Cir. 1994); Borough of Palmyra Board of Education v. F.C ., 2 F.Supp.2d 637 (D.N.J. 1998).


24

Beth Ann Brown v. Wilson County School Board , 17 IDELR 676 (U.S. Dist. Ct., M.D. of Tenn. 1991) (student would be “substantially injured” if her educational program is not continued); Borough of Palmyra Board of Education v. F.C ., 2 F.Supp.2d 637 (D.N.J. 1998) (“loss of [an appropriate education] would constitute irreparable harm”). See also Burlington v. Department of Education for the Commonwealth of Massachusetts , 736 F2d 773, 798 (1 st Cir. 1984) (keeping a student in an arguably inappropriate placement pending district court review “treats these special needs children as though they were nonperishable commodities able to be warehoused until the termination of in rem proceedings”).


25

Pihl v. Mass. Dept. of Ed. , 9 F.3d 184 (1 st Cir. 1993) (“compensatory education is available to remedy past deprivations” . . . The IDEA “may require services at a future time to compensate for what was lost”); Lester H. v. Gilhool, 916 F.2d 865 (3rd Cir. 1990), cert. denied 499 U.S. 923, 111 S.Ct. 317 (1991) (compensatory education is intended to be “an appropriate remedy to cure the deprivation of a child’s right to a free appropriate public education”); Miener v. State of Missouri , 800 F.2d 749 (8th Cir. 1986) (compensatory education intended to cure the deprivation of a handicapped child’s statutory rights).


26

Parent’s Opposition to Boston Public Schools’ Request that the BSEA not Schedule a Hearing , at page 3.


27

34 CFR 300.511(a)(1).


28

603 CMR 28.08(5).


29

Delay in the completion of the administrative appeals process in special education cases has been found to cause irreparable harm. See, e.g., Schmelzer v. State of New York , 01-CV-1864 (JS)(ARL) (E.D.N.Y. 2003) (“Inordinate delays in the decision making process deprive those students of the rights provided to them under the IDEA and cause those students to suffer irreparable harm.”).


30

Board of Education of Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 102 S.Ct. 3034, 3037 (1982) (federal special education law “represents an ambitious federal effort to promote the education of handicapped children”); Borough of Palmyra Board of Education v. F.C ., 2 F.Supp.2d 637 (D.N.J. 1998) (strong public interest in ensuring that school board complies with its responsibilities to provide appropriate education to its learning disabled students); Beth Ann Brown v. Wilson County School Board , 17 IDELR 676 (U.S. Dist. Ct., M.D. of Tenn. 1991) (public interest in providing appropriate education to handicapped school children).


31

Nieves-Marquez v. Commonwealth of Puerto Rico, 353 F.3d 108, 116 (1st Cir. 2003), citing Amann v. Town of Stow , 991 F.2d 929, 932 (1st Cir. 1993).


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