Student v. Attleboro Public Schools – BSEA # 09-6759



<br /> Student v. Attleboro Public Schools – BSEA # 09-6759<br />

COMMONWEALTH OF MASSACHUSETTS

SPECIAL EDUCATION APPEALS

In Re : Student v. Attleboro Public Schools

BSEA # 09-6759

Attleboro Public Schools’ Motion To Dismiss Parents’ Hearing Request With Prejudice

On September 17, 2009, Attleboro Public Schools (Attleboro) filed a Motion to Dismiss Parents’ Hearing Request with Prejudice. In it, Attleboro challenged the Bureau of Special Education Appeals’ jurisdiction over the sole remaining issue in the case, that is, transportation of students who attend an in district public school other than their ‘neighborhood school’.

Parents objected to Attleboro’s Motion on September 22, 2009, stating that they were “coerced” into signing a Request For Intra-District Placement Form, thereby denying Student a Free and Appropriate Public Education. Parents further stated that in doing so, Attleboro failed to implement Student’s IEP in full. Relying on 603 CMR 28.05(a)(1), Parents argued that since Attleboro placed Student in a program located at a school other than the one Student would have attended but for his special education needs, Attleboro was responsible to offer transportation.

Parents further stated that since they were “forced” to absorb the cost of transportation this constitutes a procedural violation that resulted in a deprivation of FAPE to Student. In their response, Parents raised additional issues which fall outside the scope of this Hearing and are therefore not addressed. Lastly, Parents argue that the BSEA has jurisdiction over the transportation issue, because transportation is related to placement.

FACTS :

1. Born in January 2001, Student is eight years old. He has been found eligible to receive special education services (PE-6).

2. A Placement determination dated June 6, 2006 called for Student to attend a pre-school program at the Studley Elementary School in Attleboro. It further provided that Student would be transported via mini-bus (PE-7). This document states that Student requires a closed classroom due to increased distractibility secondary to a diagnosis of PDD ( Id. ).

3. Student’s 2006-2007 school year’s IEP states that Student requires special transportation and calls for transportation to be provided via mini-bus (PE-8). Parent accepted this IEP in full on June 10, 2006.

4. Student’s Team convened on or about June 12, 2007. The Team meeting notes specifically state that

… the team does not believe that Student cannot be successful at Hill Roberts. If the parents would like [Student] to attend Willet School they need to complete the request for intra-district placement and submit it through the Superintendent’s office based upon current policy. The request must be made and considered annually (PE-12).

5. On June 14, 2007, Attleboro received Parents’ request for an intra-district placement at the Willett Elementary School instead of the Hill Roberts School, Student’s “neighborhood school”, based on Parents’ belief that Student would not do well with the noise levels in open classroom environments. Student’s Team disagreed with Parents’ position on the basis that there was no evidence that an open classroom environment would impact negatively Student’s ability to succeed (SE-5). The form signed by Parents specifically stated

I understand that requests will be approved on a space-available basis and, if request is approved, I will be responsible for arranging transportation for my child (SE-5).

6. Following a Team meeting on October 16, 2007, Attleboro drafted an IEP calling for placement of Student at the Willet Elementary School (PE-16). The following year, after a Team meeting on October 1, 2008, Attleboro drafted an IEP for Student’s second grade calling for placement at the Willet Elementary School (PE-17). Student’s Team met again on December 4, 2008 and this IEP also calls for placement of Student at the Willet Elementary School (PE-18).

7. Student’s IEPs for the 2007-2008 and the 2008-2009 school years call for participation in a full inclusion program at the Willett Elementary School (PE-4; PE-5). Neither of these IEPs makes provision for special transportation (PE-9; PE-10). Both IEPs specifically state that Student does not require transportation as a result of his disabilities. The box marked in both states,

[X] No. Regular transportation will be provided in the same manner as it would be provided for students without disabilities. If the child is placed away from the local school, transportation will be provided.

8. Student attended Attleboro for the 2007-2008 and the 2008-2009 school years (PE-9; PE-10). Parents signed the 2007-2008 IEP on October 23, 2007. They however, did not indicate whether they accepted this IEP (PE-3). No documentation indicating acceptance or rejection of the IEP for the 2008-2009 IEP was provided (PE-4; PE-5).

9. Parents did not complete a Request for Intra-District Placement Form for the 2008-2009 school year.

10. On May 22, 2009, as part of Attleboro’s Response to Parents’ Hearing Request, Attleboro provided Parents with Attleboro’s policy on student transportation, school attendance zones, and assignment of students to schools (SE-3). These policies provide that when a student attends a public school other than his or her “neighborhood school”, transportation is the responsibility of parents because it is the parents’ choice that his/her child attend the other school (SE-2; SE-3; SE-4).

11. Attleboro’s policy on Assignment of Students to Schools, approved by the school committee on March 26, 2007, addresses intra-district placement of students who reside in Attleboro and who are assigned to a school other than their neighborhood school (SE-3). This document sets numerous requirements and states that the intra-district “request is for one school year at a time” ( Id. ).

12. Attleboro’s Logistical Guideline as delineated in its School Attendance Zones policy approved by the school committee on March 26, 2007, addresses transportation for Intra-District Placements (SE-2). This section states

As a result of the above guidelines, the factors mentioned above (stability, family composition, capacity, class size, diversity, equity, distance and transportation) will be taken into account when considering parental requests for intra-district placements. In all cases where parents request an intra-district placement, no transportation will be provided by the Attleboro School System.

The Superintendent is authorized to make exceptions to attendance zones (SE-2).

13. Another policy regarding student transportation approved by the school committee on July 18, 2005, provides that the Superintendent of schools or his/her designees are responsible for all matters relative to transportation programs (SE-3). The document specifically provides that any exception to the guidelines delineated therein may be modified at the discretion of the Superintendent of schools ( Id .).

14. The sole remaining issue for hearing is reimbursement for Student’s transportation during the 2007-2008 and 2008-2009 school years (SE-1).

MOTION TO DISMISS:

Both the Standard Adjudicatory Rules of Practice and Procedure1 governing BSEA proceedings, and Rule 17 B of the Hearing Rules for Special Education Appeals , 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. It is under these rules that Attleboro moves to have this case dismissed with prejudice as to the sole remaining issue, that is, reimbursement to Parents for transportation during the 2007-2008 and 2008-2009 school years.

Motions to dismiss are analogous to Rule 12(b)(6) of the Federal and Massachusetts Rules of Civil Procedure.2 The Federal Courts have allowed motions to dismiss under Federal Rule of Civil procedure12 (b)(6) where the court found “beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”3 Further guidance is provided in Calderon-Ortiz v. LaBoy-Alvarado , 300 F.3d 60 (1 st Cir. 2002) where the court stated that “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 applicable legal theory.

Pursuant to the aforementioned standard, dismissal in the case at bar is appropriate only if Attleboro can prove that the facts regarding entitlement to reimbursement for transportation do not support Parents’ claim under any applicable legal theory. In deciding this motion, I must consider all pertinent allegations offered by Parents to be true, as well as the uncontested facts outlined in the Fact section in this Ruling, and draw all reasonable inferences in favor of the non-moving party, that is, Parents.

Furthermore, the remedy sought by Parents must fall within the purview of BSEA jurisdiction.

In the context of a special education hearing, the Massachusetts special education regulations specifically grant the BSEA jurisdiction to resolve disputes among parents, school districts and agencies regarding 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.4 603 CMR 28.08(3). It is clear that the powers granted a hearing officer under state and federal special education regulations are limited, and it is in this context that I turn to the issue before me.

Regarding the 2007-2008 school year, Parents argue that they were coerced into filing a request for intra-district placement. This argument however, is not persuasive and is unsupported by the evidence. The facts clearly show that following the Team meeting on June 12, 2007, Parents disagreed with the Team’s recommendation to place Student at the Hill Roberts School (PE-12). In order to obtain placement at Willet Elementary, their school of choice, Parents completed the Intra-District Placement Form (SE-5). Attleboro agreed to place Student at Willet Elementary pursuant to this Intra-District Placement which specifically states “I will be responsible for arranging transportation for my child”. Nothing in the record suggests that Student’s disabilities require that special transportation be arranged for him, and Student attended Willet Elementary not as a result of the Team process but as a result of Parental preference. I further note that Student’s IEPs for the years in question (one of which Parents signed on October 23, 2007), explicitly stated that Student was not entitled to special transportation (PE-3; PE-9; PE-10; PE-11). At minimum Parents had ample notice that transportation would be their responsibility, and since Student was not entitled to special transportation under the proposed IEPs for the Willet Elementary, a different arrangement regarding transportation would have been a regular education issue falling within the discretion of Attleboro’s Superintendent or his/her designee (SE-3; SE-4). In a sense, here Parent received their placement of choice in exchange for providing transportation, all of which occurred outside the Team process.

Attleboro asserts that the BSEA lacks jurisdiction over claims addressing the issue of regular transportation as well as policies that address intra-district transfers, as these are regular education issues outside the purview of the BSEA. In support of its position, Attleboro relies on a previous decision issued in a separate matter.5 In Re: Student v. Blackstone-Millville Regional School District, Wachusett Regional School District & Bay Path/ Southern Worcester County Regional Vocational Technical School District . In that case, motions to dismiss were granted in a matter involving transportation within the context of regular education law6 .

The evidence supports a finding that Student was not entitled to transportation because of his special education needs for either the 2007-2008 or the 2008-2009 school years. Since Student was not entitled to “special transportation” during the 2007-2008 school year, any transportation issue is a matter of regular education, something that falls outside the purview of the BSEA.

Parents further argued that under 603 CMR 28.05(5)(a)(1)7 , Attleboro was responsible to provide transportation because it placed Student in a program located at a school other than the one he would have attended but for his special education needs. This argument is equally unpersuasive regarding the 2007-2008 school year as placement of Student at Willet Elementary was not the result of a Team process but rather responded to Parents’ Request for Intra-District Placement. Equally unpersuasive is Parents’ argument that since they were “forced” to absorb the cost of transportation, this procedural violation resulted in a deprivation of FAPE to Student. Attleboro offered Student placement at Hill Roberts Elementary because the Team, with the exception of Parents, was persuaded that this would be an appropriate placement for Student. Parent did not reject placement and did not request a hearing at that time to show that Hill Roberts was inappropriate to meet Student’s needs. Instead, Parents chose to complete the Intra-District Placement Form to secure placement for Student at the school of their choice. When they did this, they knew that they would be responsible for transportation. Additionally, since Student’s IEP called for regular transportation, Attleboro would only have been responsible to offer transportation under said IEP if it also provided transportation to similarly situated students without disabilities. 603 CMR 28.05(5)(a).

This brings me to reimbursement for the 2008-2009 school year. The record is not clear as to whether Parents accepted or rejected the IEP for that school year, based on the issue of placement and/or transportation. The record does not include a Parent Request for Intra-District Placement for the 2008-2009 school year (which Parents state they did not complete), and Attleboro’s policy (SE-4) regarding intra-district placement requests specifically provides that the request is for one year at a time . (Emphasis supplied). Student’s IEP for that year calls for Student’s placement at the Willet Elementary School and states that student will receive regular transportation. Without additional evidence regarding the Team’s discussions and determination to place Student at Willett Elementary, the understanding of the parties regarding this placement and the IEP, separate documentation to clarify Parents’ position regarding acceptance or rejection of the IEP, and information as to whether a similarly situated regular education student would have been provided transportation, this portion of Parents’ claim cannot be dismissed pursuant to 603 CMR 28.05(5)(a) and 603 CMR 28.05(5)(a)(1), which are regulations that fall within the purview of the BSEA.

The remainder of Parents arguments regarding the Team meeting, the Team process, the Team’s decision regarding placement, other offers and procedural violations fall outside the scope of the hearing as the parties agreed that the sole remaining issue was reimbursement for transportation during 2007 to 2008 and 2008 to 2009 school years (SE-1).8

This matter is dismissed for lack of jurisdiction for the 2007-2008 school year. Since there are issues of fact remaining with respect to the 2008-2009 school year, the issue of reimbursement for the 2008-2009 school year will proceed to hearing.

ORDER :

1. Regarding the 2007-2008 school year, Parents have failed to state a claim upon which relief may be granted, and therefore, Attleboro’s Motion to Dismiss with Prejudice is GRANTED .

2. Regarding the 2008-2009 school year, the issue of whether Parents are entitled to reimbursement for the 2008-2009 school year may proceed to Hearing. Attleboro’s Motion to Dismiss with Prejudice regarding the aforementioned school year is DENIED .

So Ordered by the Hearing Officer,

_______________________________________

Rosa I. Figueroa

Dated: September 29, 2009


1

801 CMR 1.01(7)(g)3.


2

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.


3

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)).


4

“A parent or school district, except as provided in 603 CMR 28.08(3)(c) and (d), may request mediation and/or a hearing at any time on any matter concerning 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 a disability may also request a hearing on any issue involving the denial of the free appropriate public education guaranteed by Section 504 of the Rehabilitation Act of 1973, as set froth in 34 CFR §§104.311- 104.39. ” 603 CMR 28.08(3)(a).


5

See In Re: Student v. Blackstone-Millville Regional School District, Wachusett Regional School District & Bay Path/ Southern Worcester County Regional Vocational Technical School District, BSEA #08-0785 (Figueroa, 10/25/2007).


6

“Nothing in the aforementioned regulation, grants the BSEA jurisdiction over transportation issues that are not required by Student because of her disability, or to access a particular special education program in which Student has been placed by the responsible district… Since the relief requested by Parent, falls outside federal or Massachusetts special education law and regulations, the BSEA lacks jurisdiction to entertain Student’s/Parent’s claim and grant the relief sought by them.” In Re: Student v. Blackstone-Millville Regional School District, Wachusett Regional School District & Bay Path/ Southern Worcester County Regional vocational Technical School District, BSEA #08-0785 (Figueroa, 10/25/2007).


7

“(5) Transportation . The Team shall determine whether the student requires transportation because of his or her disability in order to benefit from special education.
(a) Regular Transportation . If the student does not require transportation as a result of his or her disability, then transportation shall be provided in the same manner as it would be provided for a student without disabilities. In such case, the IEP shall note that the student received regular transportation, and if the school district provides transportation to similarly situated students without disabilities, the eligible student shall also receive transportation.

(1) If regular transportation is noted on the student’s IEP and the student is placed by the school district in a program located at a school other than the school the student would have attended if not eligible for special education, the student is entitled to receive transportation services to such program.” 603 CMR 28.05(5).


8

I note that Parents were represented by two attorneys from the time the hearing was requested on May 6, 2009 through August 24, 2009 during which time most of the issues appearing in Parents’ Request for Hearing were resolved. Thereafter, Parents identified reimbursement for transportation to be the sole remaining issue for hearing in a correspondence received at the BSEA on August 24, 2009 (SE-1; Administrative File).


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