COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Springfield Public Schools
BSEA No. 11-4290
RULING ON MOTIONS TO DISMISS OF SPRINGFIELD PUBLIC SCHOOLS AND THE DEPARTMENT OF CHILDREN AND FAMILIES
At issue in this appeal is whether an Educational Surrogate Parent (ESP) is legally entitled to publicly-funded legal counsel to represent the ESP and child at a due process hearing before the BSEA, and whether the BSEA has the authority to order such relief.
PROCEDURAL HISTORY
On January 11, 2011, the ESP in this case filed a hearing request with the BSEA seeking a determination that the ESP’s retention of an attorney to file and prosecute a hearing request on behalf of the ESP and Student is a reasonable expense related to the ESP’s responsibilities as a surrogate parent, for which the school district must reimburse the ESP.
In the alternative, the ESP sought a determination that the Departments of Elementary and Secondary Education (DESE), Children and Families (DCF) and/or the local education agency must provide a funding mechanism for this purpose.
On January 14, 2011, the Springfield Public Schools (School) filed a Motion to Dismiss With Prejudice . On January 24, 2011, the ESP filed an Opposition to the Motion to Dismiss . On January 24 and 31, 2011, respectively, the ESP filed motions to join as parties both DCF and DESE. DESE filed an Opposition and Supplemental Opposition to the Motion to Join on February 7 and 17, 2011. The ESP filed a Response to this Opposition on February 22, 2011. On February 23, 2011, DESE filed an objection to an exhibit attached to this Response of the ESP. Also on February 23, 2011, DCF filed its own Motion to Dismiss .
The parties and hearing officer have agreed that rulings on the Motions to Join DESE and DCF will be held in abeyance until issuance of a ruling on this Motion to Dismiss, and an order to this effect was issued on February 11, 2011.
ISSUE PRESENTED
The issue here is whether the BSEA has jurisdiction over the current dispute, and/or authority to grant the relief sought by the ESP, namely an order that either the Springfield Public Schools, DCF, or DESE pay the costs of an attorney to represent the ESP in a due process hearing before the BSEA concerning educational services for the Student at issue.
POSITIONS OF THE PARTIES
Position of School
The issues of whether a school district is obligated to fund an attorney to accompany an ESP to a BSEA hearing, and whether the state violates the IDEA’s due process mandate because it does not provide a mechanism to fund counsel for an ESP are policy questions that are not within the jurisdiction of the BSEA. Further, nothing in the IDEA grants parents the right to publicly-funded attorney representation at due process proceedings.
Position of DCF
Even if the BSEA has jurisdiction over the ESP’s claims in this case, the matter must be dismissed because the BSEA lacks authority to grant the relief sought by the ESP.
Position of ESP
The BSEA has jurisdiction over the ESP’s claims because these claims are predicated upon federal and state special education laws and regulations relative to the right of a parent to be accompanied by counsel at administrative hearings. If other agencies such as DCF and DESE may also be responsible for public funding of such counsel for children who are wards of the state, this responsibility also is derived from the IDEA; therefore, the BSEA has authority to join these agencies as parties and jurisdiction over the issue of whether these agencies have fulfilled their responsibilities
Position of DESE
DESE has not filed any separate motion or memorandum relative to the Motion to Dismiss .
FACTS
For purposes of the Motion, the following factual assertions are deemed to be true, and are considered in the light most favorable to the ESP.
1. Student is a nearly 17-year old special education student enrolled in the Springfield Public Schools. His eligibility is not in dispute.
2. Student is in the permanent custody of DCF, and, therefore, has been assigned an ESP with authority to make educational decisions on his behalf.
3. Disputes have arisen between the ESP and the School over whether or not the IEP Team has adequately considered or addressed the relationship, if any, between the Student’s disabilities and his difficulties with school attendance.
4. Because these parties have been unable to resolve this dispute informally or via mediation, the ESP requested the School and/or DCF to pay for an attorney to represent the ESP and Student in a hearing at the BSEA. Both the School and DCF have declined these requests.
FINDINGS AND CONCLUSIONS
Standards for Motion to Dismiss
Under the Standard Adjudicatory Rules of Practice and Procedure , 801 CMR 1.01(7)(g)(3) and Rule 17B of the BSEA Hearing Rules for Special Education Appeals , a BSEA hearing officer may allow a motion to dismiss if the party requesting the appeal fails to state a claim on which relief can be granted.1
Since this Rule is analogous to Rule 12(b)(6) of the Federal and Massachusetts Rules of Civil Procedure, BSEA hearing officers have generally used the same standards as the courts in deciding motions to dismiss for failure to state a claim. Specifically, a motion to dismiss should be granted only if the party filing the appeal can prove no set of facts in support of his or her claim that would entitle him or her to relief that the BSEA has authority to order. That is, a hearing officer may dismiss a case if he or she cannot grant relief under either the federal or state special education statutes or the relevant portions of Section 504 of the Rehabilitation Act, after considering as true all allegations made by the party opposing dismissal and drawing all reasonable inferences in his/her favor. See Caleron-Ortiz v . LaBoy-Alverado , 300 F.3d 60 (1 st Cir. 2002);2 Whitinsville Plaza, Inc. v. Kotseas , 378 Mass. 85, 89 (1979); Nader v. Citron , 372 Mass. 96, 98 (1977).
Pursuant to this standard, I conclude that the instant Motions to Dismiss should be GRANTED, with prejudice, because the BSEA lacks authority to grant the relief sought by the ESP. My analysis follows.
The BSEA’s sole jurisdiction and authority is to decide individual disputes between parents/guardians, school districts, and, sometimes, other entities such as state agencies, as these disputes concern the rights of children with disabilities under the IDEA, G.L. c. 71B, and §504 of the Rehabilitation Act.3 In deciding such disputes, the BSEA may only grant relief that is authorized by these statutes and regulations, which generally encompasses orders for specific placements, services, or additional evaluations, as well as, in certain cases, reimbursement for services obtained privately by parents or compensatory services. The authority to grant such relief is well-settled. Also well-settled is the BSEA’s lack of authority to award attorney fees to prevailing parties, as original jurisdiction over such claims lies with the appropriate state or federal district court See 20 USC Sec. 1415(e)(3); 34 CFR Sec. 300.517(a); In Re: Lincoln-Sudbury Public Schools , BSEA No. 11-2546. (Figueroa, 2010) and cases cited therein.
As stated and amply explained by DCF in its Motion to Dismiss , there is nothing in the IDEA or G.L. c. 71B which grants to parents or surrogate parents the right to representation by publicly-funded counsel. Parents have the right to be “accompanied and advised by counsel,”4 but such right does not encompass an entitlement to have counsel paid for by a school district or other public entity.
The ESP has argued that surrogate parents of children who are wards of the state are in a particularly difficult position if no public funding for counsel is available. The BSEA, however, has no authority to address this issue.
CONCLUSION AND ORDER
For the reasons stated above, the School’s Motion to Dismiss , with prejudice, is ALLOWED as to all of the claims raised in the ESP’s Hearing Request. This Order does not apply to the underlying issues relative to the appropriateness of the Student’s IEP and/or services .
By the Hearing Officer
________________________
Dated: April 12, 2011
Sara Berman
1
The BSEA may also dismiss a claim if it lacks jurisdiction to decide it; however, the jurisdictional issue need not be reached here, because even if the BSEA has jurisdiction over the issue of funding for counsel in this specific case, it has no authority to grant the relief requested, as will be discussed, infra.
2
A motion to dismiss will be denied if “accepting as true all well-pleaded factual averments and indulging all reasonable inferences in the plaintiff’s favor, if recovery can be justified under any applicable legal theory. “ Id
3
See 34 CFR 104.31-104.39; 603 CMR 28.08(3)(a); MGL c. 7, Sec. 4H; In re Lincoln-Sudbury Public Schools , BSEA No. 11-2546.
4
20 USC Sec. 1415(h)(1); 34 CFR Sec. 300.512(a)(1)