Student R. v. Lincoln Sudbury Regional School District – BSEA # 11-2546



<br /> Student R. v. Lincoln-Sudbury Regional School District – BSEA # 11-2546<br />

COMMONWEALTHOF MASACHUSETTS

DIVISION OF ADMINISTRATIVE LAW APPEALS

SPECIAL EDUCATION APPEALS

In Re: Student R. v. Lincoln–Sudbury Public Schools

BSEA # 11-2546

Ruling on Lincoln–Sudbury Public Schools’ Motion To Dismiss

Parents’ Due Process Complaint

On October 15, 2010, Parents in the above–referenced matter filed a request for Hearing alleging that Lincoln–Sudbury Public Schools (LS) had violated Student’s right to a free appropriate public education (FAPE) and seeking redress including reimbursement for a history course taken by Student during the 2009-2010 school year.

On October 20, 2010, LS filed a Motion to Dismiss and memorandum in support thereof, stating that Parents lacked standing to file on behalf of their daughter because Student was over eighteen (18) years of age and had not transferred her educational decision–making authority to Parents. Additionally, LS stated that the complaint should be dismissed because claims regarding two of the three years involved in Parents’ complaint (the 2006-2007 and 2007-2008 school years) were barred by the IDEA’s statute of limitation and because the BSEA lacked jurisdiction to hear the claims raised by Parents.

Facts:

1. Born in November 1990, Student is twenty years old, and she has not transferred decision–making authority regarding her education to Parents.

2. The transgressions allegedly committed by LS occurred during 2006-2007, 2007-2008 and the 2009-2010 school years.

3. Student suffers from Chronic Fatigue Syndrome which has caused her to have irregular attendance and to require receipt of her education in the home. As a result, Student became eligible to receive home–based education starting in October/November 2006, pursuant to M.G.L. 71B §2, 603 CMR 28.03c. It took however, some time before Student’s home–tutoring was initiated.

4. Student was found eligible to receive special education in July 2007.

5. Parents state that during the 2006 to 2010 school years Parents retained advocates and attorneys to represent them. Parents state that a series of agreements were negotiated and reached between the Parties including two mediated agreements reached on July 11, 2007 and on September 6, 2007.

6. Parents assert that when Student was unable to attend school after November 9, 2007, due to illness, LS prevented Student from accessing her Medieval History course after it had allowed her to register for the course pursuant to the mediated agreement of July 11, 2007, which provided for Student to receive assistance in her Medieval History course.

7. Additionally, following the filing of a BSEA hearing request by LS on December 11, 2007 and another hearing request by Parents (then represented by an attorney) on January 7, 2008, the Parties reached a settlement agreement through the BSEA on March 17 and 18, 20081 .

8. All three agreements, the two mediated agreements and the agreement resulting from the settlement conference, were expressly incorporated into and attached to Student’s IEP for the 2007-2008, 2008-2009, and part of the 2009-2010 school years. The Settlement Agreement of March 2008 contained specific additional information regarding the Medieval History course. According to Parents, LS “serially violated” those agreements, resulting in a denial of FAPE to Student.

9. In December 2009, having turned eighteen years old, Student signed and accepted the 2009-2010 IEP. Also, on December 19, 2009 she handed a letter to LS’ Director of Student Services which stated in pertinent part: “…I will be making all of my own decisions, as I am of the age of consent, I would like to clarify that in all financial matters I give my decision–making power to my parents….” Student graduated from LS in June 2010 and she currently attends college.

Conclusions:

BSEA proceedings are subject to rules regarding dismissal consistent with the Rules of Adjudicatory Procedure of the State Administrative Procedures Act, Chapter 30A2 , and its own Hearing Rules for Special Education Appeals

Consistent with the Standard Adjudicatory Rules, Rule XVII B of the Hearing Rules for Special Education Appeals addressing Dismissal and Closure of Case explains in pertinent part that any party may request that a case be dismissed for,

1. lack of jurisdiction;

2. failure of the opposing party to prosecute or proceed with the case;

3. failure of the opposing party to follow or comply with the Rules or any Hearing Officer Order;

4. failure to state a claim upon which relief may be granted; or,

5. the clear failure of the opposing party to establish a viable claim for relief after presentation of its evidence.

The Hearing Officer may allow a motion or request to dismiss with or without prejudice.

While not specifically stated, motions to dismiss on the basis of lack of standing (an individual’s or sovereign’s capacity to be a party defendant in an action3 ) may also be entertained as lack of standing would render a request for hearing not viable ab initio . Both the Adjudicatory Rules of Practice and Procedure and the Hearing Rules for Special Education Appeals grant the Hearing Officer discretion to dismiss claims with or without prejudice. (See Rule XVII A4 ).

The BSEA has long held that motions to dismiss are analogous to Motions filed pursuant to Rule 12(b)(6) of the Federal and Massachusetts Rules of Civil Procedure.5 Federal Courts have reasoned that motions to dismiss under Federal Rule of Civil procedure 12 (b)(6) may be allowed when it is beyond doubt that the plaintiff can prove no set of facts in support of his/her claim which would entitle him to relief.6 In the context of a motion to dismiss, all well–pleaded factual averments must be accepted as true and all reasonable inferences must be accepted in the plaintiff’s favor. If recovery may be justified under any applicable legal theory, then the motion to dismiss must be denied. Calderon-Ortiz v. LaBoy-Alvarado , 300 F.3d 60 (1 st Cir. 2002).

Furthermore, while discretion to grant motions to dismiss falls within the powers granted a Hearing Officer, courts have expressed a preference for deciding cases on the merits. See Ruiz-Rosa v. Rullan, 485 F. 3d 150, C.A.1 (Puerto Rico) (2007); Ritchie v. Town of Yarmouth , Not Reported in N.E. 2d, 2005 WL 225990 (Mass. Super.) quoting Monahan v. Washburn , 400 Mass. 126 (1987)(“…However, a trial on the merits of the plaintiff’s claims are strongly favored, and the involuntary dismissal of such a claim should be reserved for those situations where a severe sanction is necessary.) With this guidance, I consider the unique circumstances of this case.

Here, LS seeks dismissal with prejudice on the basis that Parents’ lack standing to request a hearing, because their claims are barred by the statute of limitations, and/or because the BSEA lacks jurisdiction to hear the claims. As the moving party on the motion, LS carries the burden of persuasion.

Regarding the 2009-2010 school year, LS asserts that Parents lack standing to bring this action because Student, who is almost 20 years old, has never transferred decision–making authority to Parents. Additionally, regarding the 2006-2007 and 2007-2008 school years, LS argues that those fall outside of the statute of limitations and as such are time–barred pursuant to 20 USC §1415(f)(3)(C) because Parents did not bring those actions within two years. LS further asserts that since the claim for 2009-2010 was predicated upon alleged acts or omissions that occurred during the 2007-2008 school year, those too are time–barred. LS states that claims arising out of the 2009-2010 school year involve an IEP that was signed and accepted by Student, then over eighteen (18) years of age. As such, LS asserts that only Student has standing to bring any claim arising out of the 2009-2010 IEP. The last of LS’ objections involves the BSEA’s lack of jurisdiction over the matters raised by Parents, which are: “complaints of threats, harassment, intimidation or retaliation, and … attorneys’ fees.”

Parents responded that LS violated the terms of numerous agreements between the Parties resulting in a denial of FAPE to Student. Regarding the 2007-2008 school year Parents assert that after November 9, 2007, LS prevented Student from accessing her Medieval History course when Student was unable to attend school due to illness. Parents state that since LS had allowed Student to register for the course in a mediated agreement dated July 11, 2007, LS owes Student compensatory services which Student did not receive.

Regarding the 2009-2010 IEP, Parents argue that LS refused to pay for the history home tutoring which was supposed to compensate Student for LS’ failure to offer her the history tutorial in 2007-2008. Parents further state that pursuant to the terms of the Settlement Agreement of March 2008, Parents have a right to reimbursement for the history home tutoring provided by them during the 2009-2010 school year (see paragraph 9E of the BSEA Agrement).

Parents seek a determination, pursuant to the settlement agreement, that LS failed to offer Student a FAPE and failed to comply with the requirements of 603 CMR 28.03(c). Alleged violations include failure to provide Student two semesters of the Medieval History course in 2007-2008 and failure to reimburse Parents for the history home–tutoring paid by them. Parents wish to be reimbursed for the history tutorial as well as for all other history home–based tutorial services provided by them. Parents further seek reimbursement for part of the fees incurred by them when they hired advocates and attorneys to represent them, and any other relief within the authority of the Hearing Officer.

I. Standing:

First, I must consider Parents’ standing to bring this action on behalf of Student. LS is correct that both 20 USC §1415(m)7 and 603 CMR 28.01(15)8 provide that parental rights and educational decision–making transfers to the student when s/he turns eighteen years of age. Similarly, 34 CFR 300.520(a)(1)(ii) provides that when the student reaches the age of majority “[a]ll rights accorded to parents under Part B9 of the Act transfer to the child.”

The IEP attached to Parents’ Request for Hearing states that Student was born in early November 1990, making her twenty years old as of the date of issuance of this Ruling.

Student graduated from LS in June 2010 after having signed the last IEPs herself by virtue of being over eighteen years old. As such, all educational decision–making is within Student’s purview as are all procedural safeguards under federal and state special education law. See In Re: Milton Public Schools v. Department of Education & Boston Public Schools , BSEA # 07-4642 (April 30, 2007) (“Since Student is over eighteen years old, the age of majority in Massachusetts, and since he was never declared incompetent and no guardian was ever appointed, the only reasonable conclusion is that he is an adult under federal and state law. As such, all rights transferred to him at the age of majority…”).

As in the Milton case, Student, who is now twenty years old, has not been declared incompetent. Since she is over the age of legal majority, only she has standing to request a hearing regarding any claims.10

Parents argue that their claim is not for implementation of educational services/programs for Student, but for reimbursement of the costs of books, tuition and tutoring paid directly by Parents for Student’s benefit and consistent with the BSEA agreements which called for reimbursement to be paid directly to the tutor or Parents. Parents assert that the financial reimbursement claim is theirs to assert. Parents request that the BSEA enforce their right to reimbursement under the agreements. Furthermore, Parents assert that even after Student turned eighteen, all reimbursement checks paid by LS were paid to Parents or the tutors, not to Student. Also, none of the letters written to LS, and none of the invoices or receipts were issued by Student, but rather by Parents. Parents state that Student wrote in the accepted IEP for the 2008-2009 school year that she delegated all decision–making over financial matters to Parents and the relief sought in the instant case is a financial matter. According to Parents, Student never revoked said authorization, as she chose to share this decision–making with Parents. Parents rely on 603 CMR 28.07 (5) of the Massachusetts Special Education Regulations addressing a student’s participation and consent at the age of majority. Said regulations state in relevant part
(5) Sudent participation and consent at the age of majority . When the student reaches 18 years of age, he or she shall have the right to make all decisions in relation to special education programs and services. The school district shall have the obligation to obtain consent from the student to continue the student’s special education program. The parents will continue to receive written notices and information but will no longer have decision–making authority, except as provided in 603 CMR 28.07(5)(a) through (c)…

(b) The student, upon reaching 18 years of age and in the absence of any court actions to the contrary, may choose to share decision–making with his or her parent (or other willing adult), including allowing the parent to co–sign the IEP. Such choice shall be made in the presence of the Team and shall be documented in written form. The student’s choice shall prevail at any time that a disagreement occurs between the adult student and the parent or other adult with whom the student has shared decision–making.

(c) The student, upon reaching 18 years of age and in the absence of any court actions to the contrary, may choose to delegate continued decision–making to his or her parent, or other willing adult. Such choice shall be made in the presence of at least one representative of the school district and one other witness and shall be documented in written form and maintained in the student record.

LS argued that although Parents alleged that Student gave them decision–making authority regarding “all financial matters,” this could not be interpreted to also include educational decision–making.11 Parents’ response to LS’ motion to dismiss however, explained that they were not seeking to make educational decisions but rather to share financial decision–making. Therefore, Parents assert that they have standing because Student was sharing decision–making authority with Parents.

The regulation on which Parents rely, 603 CMR 28.07(5)(b), however, requires that the Student’s decision to share decision–making “be made in the presence of the Team and shall be documented in written form.” While Parents point to a letter delivered by Student (then nineteen years of age) on December 19, 2009 to the Director of Student Services, there is nothing in the record to show that the first part of the standard was met; that is, that Student’s choice was made in the presence of the Team. Therefore, Parents have not met the regulatory requirements to establish that Student effectively chose to share decision–making with them. As such, they have not satisfactorily demonstrated that they have standing.

The plain meaning of the statute and the statutory intent is to transfer educational decision–making to students at the age of majority with few exceptions, none of which has been established by Parents in the instant case. As such, Parents lack standing to request a hearing on Student’s behalf. Only Student has standing to request a hearing at this time.

II. Claims Barred by the Statute of Limitations:

LS further asserts that Parents’ claims for 2006, 2007 and 2008 (including the claims for reimbursement of costs associated with the history course taken by Student in the home between 2009-2010 because they arise out of an alleged failure during the 2007-2008 school year12 ) are barred by the statute of limitations applicable to IDEA cases.

The statute of limitations applicable to BSEA proceedings is delineated in 20 USC §1415(f)(3)(C) which mandates that due process hearings be brought “…within 2 years of the date the parent or agency knew or should have known about the alleged action that forms the basis of the complaint.”

The statute further provides exceptions applicable only when parents have been prevented from requesting a hearing due to specific misrepresentation or withholding of information by the school district, and these are further incorporated into Rule 1C of The Hearing Rules for Special Education Appeals .13

LS argues that Parents should have brought their complaint by October 15, 2010, and that their complaint could have only gone back to October 13, 200814 . Furthermore, since Parents are not alleging any new claims, but rather the claims that arose out of alleged acts or omissions which allegedly occurred during the 2006-2007 and 2007-2008 school years, they are barred from raising those. Similarly, LS further states that that claims for some of the reimbursement for compensatory services Parents allegedly paid in 2009-2010, are also barred because they are based upon allegations relating to the 2007-2008 school year.

Parents argue that LS’ position is “based on ill conceived assertions that distort and misrepresent facts”, as at the center of their claim is the district’s failure to reimburse Parents pursuant to the “express terms of the Agreement (incorporated into each one of Student’s IEPs) for a history home tutorial course” which Student took during the 2009-2010 school year. Since their dispute involves events that occurred within the past two years, they are not barred by the statute of limitations. Parents state that they seek reimbursement for a course taken by Student with the consent of LS and under the terms of the previous agreement attached to Student’s IEPs for the 2008-2009 and the 2009-2010 IEPs. After Student completed her course in June 2010, Parents forwarded copies of the bills to LS. LS responded by a letter dated June 24, 2010, stating that it had never agreed to fund the alleged expenses and as such would not pay the bills. Parents further state that since the claims regarding the Medieval History course during the 2007-2008 school year went well beyond June 2008, as Student completed the course during the 2009-2010 school year, and since LS had agreed to pay for the course and materials under the agreement, Parents reasoned that their claim was viable and fell within the two year statute of limitations. According to Parents, LS was therefore obligated to abide by the terms of the agreement and should reimburse them for the course completed by Student during the 2009-2010 school year.15 Parents offered a great deal of information dating back to 2006, but they assert that their claim is for a “limited series of LS’ breaches of educational law and agreement, action and (in)actions that occurred, and about which they learned within the past two years.” Parents’ explanations in the response to the motion to dismiss differ however, from their request for hearing, which specifically alleged deprivation of FAPE to Student, and requested compensatory education in addition to other remedies.

LS’ position with respect to its statute of limitations arguments is that it is simply too late in the process to attempt to revive claims otherwise barred. However LS’ position as to whether the claims are barred is not so clear. As explained earlier in this ruling, in deciding a motion to dismiss, all factual averments must be taken as true and must be interpreted in the light most favorable to the non–moving party, herein Parents. Application of this standard to the instant case leaves a question as to whether, had the case been brought by the appropriate party with standing, Parents may have been entitled to a hearing on the issue of reimbursement. Bearing in mind that LS carries the burden of persuasion regarding the motion to dismiss, I cannot at this juncture reach the conclusion LS suggests regarding a bar on the claims raised.

III. BSEA Jurisdiction Over Parents’ Claims:

LS asserts that the BSEA lacks jurisdiction to adjudicate claims involving alleged harassment, intimidation, threats and/or retaliation by virtue of the school district accessing “the BSEA procedures created for the very purpose of resolving disputes between parents and school districts.”

The BSEA’s jurisdiction as described below, is geared toward resolving disputes involving parents, school districts, private schools and state agencies on any matter regarding

… the eligibility, evaluation, placement, IEP, provision of special education in accordance with state and federal law, or procedural protections of state and federal law for students with disabilities. A parent of a student with disability may also request a hearing on any issue involving the denial of the free appropriate public education guaranteed by section 504 or the Rehabilitation Act of 1973, as asset forth in 34 CFR §§104.31-104.3916 . 603 CMR 28.08(3)(a).

LS argues that while Parents assert that they have been intimidated, threatened or harassed, Student was not denied a FAPE. Therefore, the BSEA has no jurisdiction to hear alleged tortuous violations of these rights.

Parents argue that the BSEA has power to enforce the unambiguous terms of the agreements reached between LS and Parents, especially because the agreements were attached to and incorporated into Student’s IEPs. They state that the BSEA has “standing to enforce all matters in a BSEA settlement agreement AND also has authority to proceed on financial matters that are related to the providing of educational services.” (Emphasis supplied). In so stating, they partially rely on language contained in the agreement.

Nothing in the IDEA, the Massachusetts special education law or the regulations promulgated under those statutes grants a BSEA Hearing Officer the authority to enforce agreements. IDEA 2004 specifically added language specifying that mediated agreements were “enforceable in any State court of competent jurisdiction or in a district court of the United States.” 20 USCS §1415(e)(2)(F)(iii). The statutory language is clear that the BSEA lacks authority to enforce mediated agreements. Parents’ recourse is in a different forum.

Similarly, Parents seek enforcement of a settlement agreement entered in March 2008. Paragraph 24 of said agreement states in pertinent part that “the parties agree the BSEA [sic] retain jurisdiction of these matters and the BSEA will have authority to enforce the terms of this Agreement…”. Even if Parties agree between themselves that the BSEA will have authority to “enforce” agreements, such language is insufficient to bind the BSEA where it otherwise lacks statutory authority, and enforcement of agreements is not one of the powers specifically granted to BSEA Hearing Officers. The BSEA may only take jurisdiction over IEPs and over those portions of the agreement that are appropriate components of an IEP and have been incorporated by reference into the IEP.

A different section of the Agreement states that “a copy of this Agreement will be attached to and incorporated into [Student’s] IEP. The parties may modify the Agreement by mutual consent. A copy of the Agreement, or such modified Agreement as may be agreed to by the parties, will be attached to and incorporated into all of [Student’s] IEPs.” Therefore, the BSEA may review those provisions of the agreement that would otherwise be appropriate components of an IEP.

As with the mediated agreements, Student’s recourse for enforcement of the agreement would also lie with a state court of competent jurisdiction or in the United States District Court for the District of Massachusetts. The BSEA lacks jurisdiction to adjudicate Parents’ claims regarding enforcement.

IV. Award of Attorneys’ Fees:

LS is also correct that the BSEA lacks authority to award attorneys fees to prevailing parties. Consistent with the rulings in In re: Nahant Public Schools , BSEA # 04-1098 and In Re: Rockport Public Schools , BSEA # 01-4954, 8 MSER 1, 3(2002), the federal district court has original jurisdiction over attorneys fees claims arising out of a BSEA proceeding.17 Furthermore, nothing in the statute or case law provides for recovery of fees paid to advocates either in court or through the BSEA.

Ruling:

I find that Parents’ due process complaint must be dismissed because Parents have no standing and the BSEA lacks jurisdiction over claims addressing attorneys’ fees and enforcement of mediation/settlement agreements.18

So Ordered by the Hearing Officer,

_________________________________

Rosa I. Figueroa

Dated: November 29, 2010


1

Paragraph 24 of said Settlement agreement of March 2008 provides “the parties agree the BSEA [sic] retain jurisdiction of these matters and the BSEA will have authority to enforce the terms of this Agreement… A copy of this Agreement will be attached to and incorporated into [Student’s] IEP. The parties may modify the Agreement by mutual consent. A copy of the Agreement, or such modified Agreement as may be agreed to by the parties, will be attached to and incorporated into all of [Student’s] IEPs.”


2

See 801 CMR 1:01(7)(d) regarding Motions to Dismiss: “1. General Grounds. Any party may move to dismiss for failure of the other Party to prosecute or to comply with these rules or with any order of the Agency or Presiding Officer. Upon completion by the initiating Party of the presentation of evidence, the responding Party may move to dismiss on the grounds that, upon the facts and/or the law, the initiating Party has not sustained its case. The Presiding Officer or Agency may act upon the motion then, or may wait until the close of all the evidence. The granting of such motion shall be considered a Decision and a written Decision shall be made as provided in 801 CMR 1.01(10)(m)2 (Final Decisions).

2. Failure to Prosecute. When the record discloses the failure of the Petitioner to file documents required by these rules, respond to notices or correspondence, comply with orders or otherwise indicates an intention not to continue with the prosecution of an appeal, the Agency, or Presiding Officer, may issue an order requiring that the Petitioner show cause why the appeal should not be dismissed for lack of prosecution. If the Petitioner shall fail to show such cause, the appeal may be dismissed with prejudice.” The Standard Adjudicatory Rules of Practice and Procedure, 801 CMR 1:01(7)(d).


3

Black’s Law Dictionary, sixth edition.


4

A. Dismissal With and Without Prejudice Defined:

A Hearing Officer may dismiss a case with prejudice or without prejudice. Dismissal with prejudice means that the issues litigated and/or raised in the hearing request are closed and cannot be reopened/ relitigated in subsequent cases before the BSEA. Dismissal without prejudice means that the same issues may be litigated at a later date by the filing of a new request for hearing within the statutory time period. [Rule XVII A of the Hearing Rules for Special Education Appeals .]


5

See In Re: Norfolk County Agricultural School , BSEA # 06-0390 (Berman, 2006),

… 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. 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.


6

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


7

Transfer of parental rights at age of majority . (1) In general. A State that receives amounts from a grant under this part [20 USCS §§ 1411 et seq.] may provide that, when a child with a disability reaches the age of majority under State law (except for a child with a disability who has been determined to be incompetent under State law)– (A) the agency shall provide any notice required by this section to both the individual and the parents; (B) all other rights accorded to parents under part [20 USCS §§ 1411 et seq.] transfer to the child…. 20 USC §1415(m).


8

Parent shall mean father or mother. For purposes of special educational decision–making, parent shall mean father, mother, legal guardian, person acting as a parent of the child, foster parent, or an educational surrogate parent appointed in accordance with federal law. Legal authority of the parent shall transfer to the student when the student reaches 18 years of age. 603 CMR 28.01(15).


9

The procedural safeguards, including the right to request a hearing, are included in Subpart E of Part B of the IDEA and, therefore, transfer to students when they reach 18.


10

Consistent with the federal statute, federal regulations at 34 C.F.R. § 300.520 provide that
(a) General. A State may provide that, when a child with a disability reaches the age of majority under State law that applies to all children (except for a child with a disability who has been determined to be incompetent under State law)–

(1) (i) The public agency must provide any notice required by this part to both the child and the parents; and

(ii) All rights accorded to parents under Part B of the Act transfer to the child;

(2) All rights accorded to parents under Part B of the Act transfer to children who are incarcerated in an adult or juvenile, State or local correctional institution; and

(3) Whenever a State provides for the transfer of rights under this part pursuant to paragraph (a)(1) or (a)(2) of this section, the agency must notify the child and the parents of the transfer of rights.

(b) Special rule. A State must establish procedures for appointing the parent of a child with a disability, or, if the parent is not available, another appropriate individual, to represent the educational interests of the child throughout the period of the child’s eligibility under Part B of the Act if, under State law, a child who has reached the age of majority, but has not been determined to be incompetent, can be determined not to have the ability to provide informed consent with respect to the child’s educational program.


11

See M.G.L. c. 7 §4A and c.71B §2A regarding the scope of the BSEA jurisdiction.


12

Parents assert that this claim relates to a course that Student took “solely to compensate for the year of history [Student] ‘lost’ as the direct result of L-S’s numerous unlawful failures to provide access to [the] Medieval History course in the 2007-08AY [school year]”


13

“A parent or agency shall request an impartial due process hearing within two (2) years of the date the parent or agency knew or should have known about the alleged action that forms the basis of the complaint. This timeline does not apply if a parent was prevented from requesting a hearing due to either specific misrepresentations by the school district that it had resolved the problem forming the basis of the hearing request or the school district’s withholding of information from the parent that was required to be provided under federal law.” Rule 1C of The Hearing Rules for Special Education Appeals .


14

Although Parents’ Request for Hearing was received by the BSEA on October 15, 2010, it presumably reached LS by October 13, 2010.


15

The Settlement Agreement of March 17 and 18, 2008, provides in part: “… for the remainder of the 2007-2008 school year and until such time as she completes each course (or notifies the school in writing of her intention to withdraw from the class) [Student] will be enrolled in Medieval European History… and all of the provisions of this Agreement will apply to these… courses effective immediately.”


16

See also M.G.L. c.7 §4H granting the BSEA jurisdiction over any dispute between Parents, school districts and state agencies relating to the “identification, evaluation, or educational program or placement of a child with a disability or the provision of a free and appropriate public education to the child arising under said chapter 71B and its regulations or under the Individuals with Disabilities Education Act, 20 USC section 14.00 et seq., and its regulations; or (ii) a student’s rights under section 504 of the Rehabilitation Act of 1973, 29 USC section 794, and its regulations.”


17

See also In Re: Belmont Public Schools , BSEA # 06-2596 (the BSEA has no jurisdiction to order reimbursement for lost wages or attorneys fees), and In Re: Norwood Public Schools , BSEA #06-0214 (attorneys’ fees are the exclusive province of the courts).


18

I note that to the extent that Parents’ previous hearing requests (which were resolved via settlement and/or mediation agreements) involved the same claims they are now raising, Parents would be further barred from bringing these actions under the legal theories of res judicata or collateral estoppel .


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