COMMONWEALTH OF MASSACHUSETTS
Division of Administrative Law Appeals
Bureau of Special Education Appeals
In Re: Sudbury Public Schools
BSEA # 10-0704
RULING ON COMPLIANCE MOTION
This Ruling addresses the question of whether a School District must immediately comply with a Bureau of Special Education Appeals (BSEA) decision ordering reimbursement of out-of-pocket expenses where the School District has appealed the decision to federal court.
This Ruling also addresses the question of whether a student’s right to prospective services (pursuant to stay-put protections) can be determined through a motion for compliance where the BSEA decision addressed only reimbursement issues.
On August 19, 2010, Parent filed a Motion for Compliance with Decision Issued April 9, 2010 ( Motion for Compliance ) taking the position that during the pendency of an appeal to federal court, Sudbury Public Schools (Sudbury) has refused to comply with said Decision in the following respects: (1) Sudbury has refused to reimburse Parent for her out-of-pocket expenses at The Carroll School (Carroll) up to the date of the BSEA decision dated April 9, 2010 (Decision or April 9, 2010 Decision) and (2) Sudbury has refused to pay for Student’s tuition and transportation at Carroll subsequent to the Decision.1
On September 1, 2010, Sudbury filed its opposition, taking the position that although the Decision required reimbursement for out-of-pocket expenses at Carroll up to the date of the Decision, Sudbury need not reimburse Parent pending the federal court appeal. In addition, Sudbury took the position that the Decision did not reach the issue of prospective placement and therefore no tuition or transportation expenses subsequent to the Decision need be paid to Parent.2
Neither party has requested a hearing on the Motion for Compliance , and I find that a hearing is not needed because it would not likely advance my understanding of the issues. See BSEA Hearing Rule VII E. This Ruling is issued pursuant to BSEA Hearing Rule XV, which provides, in relevant part, that a “ party contending that the Hearing Officer’s decision is not being implemented may file a motion requesting the BSEA to order compliance with the decision. … Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief ….”3
The following facts are alleged in Parent’s Motion for Compliance , are not disputed by Sudbury, and are therefore taken to be true for purposes of the instant Ruling.
Parent incurred out-of-pocket tuition and transportation expenses for the 2009-2010 school year of $23,495.12. Parent incurred and paid these tuition expenses prior to the date of the Decision (April 9, 2010). By letter of June 14, 2010, Parent sent documentation of her out-of-pocket expenses to Sudbury’s attorney. By letter dated June 24, 2010, Sudbury informed Parent that Sudbury is not obligated to comply with the Decision’s monetary award to Parent because Sudbury has filed an appeal in federal court.
On June 18, 2010, Sudbury proposed an individualized education program (IEP) for Student for the 2010-2011 school year. By letter of July 12, 2010, Parent rejected the IEP and requested funding for Carroll. Sudbury has declined to pay for funding of Student’s placement at Carroll for the 2010-2011 school year.
The April 9, 2010 Decision framed the then-disputed issues as follows:
1. It is not disputed that Sudbury did not provide Student with an individualized education program (hereinafter, IEP) for Student’s 5 th grade (2008-2009 school year). Was Sudbury responsible for providing an IEP for 5 th grade?
2. If so, did Parent’s unilateral placement at The Carroll School provide Student with a free appropriate public education in the least restrictive environment?
3. If so, is Parent entitled to reimbursement for part or all of her out-of-pocket expenses for The Carroll School for 5 th grade?
4. Is the IEP most recently proposed by Sudbury for 6 th grade (2009-2010 school year) reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment?
5. If not, did Parent’s unilateral placement at The Carroll School satisfy this standard?
6. If so, is Parent entitled to reimbursement for part or all of her out-of-pocket expenses for The Carroll School for 6 th grade? [Footnote omitted.]
The Decision concluded with the following Order:
Parent is not entitled to reimbursement for expenses relative to her unilateral placement of Student at the Carroll School for 5 th grade.
Sudbury shall reimburse Parent for all of her out-of-pocket expenses (including tuition and transportation) that she has incurred and paid, as of the date of this Decision, for her unilateral placement of Student at the Carroll School for 6 th grade.
On June 14, 2010, Sudbury appealed the April 9, 2010 Decision to the United States District Court for the District of Massachusetts.
I first consider the question of whether Sudbury must immediately comply with the Decision’s order that Sudbury reimburse Parent her out-of-pocket expenses where Sudbury has appealed the decision to federal court. As a preliminary matter, I review the authority of a BSEA hearing officer to order reimbursement in an appropriate case.
If a school district fails in its obligation to provide a free appropriate public education (FAPE) to a student with a disability, parents may enroll their son or daughter in a private school and seek retroactive reimbursement for the cost of the private school. A BSEA Hearing Officer may require the school district to reimburse the parents for the cost of that enrollment only if the Hearing Officer finds both that (1) the school district had not made FAPE available to the student in a timely manner prior to that enrollment and (2) the private school placement was appropriate. In such circumstances, the school system will be responsible for the reasonable out-of-pocket costs incident to that private placement, including tuition and transportation.4
As the Supreme Court has stated, “[r]eimbursement merely requires the [school district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper IEP.”5
Pursuant to this authority, the April 9, 2010 Decision awarded Parent reimbursement for out-of-pocket expenses for 6 th grade at Carroll. The Decision was a final decision of the BSEA that cannot be reconsidered at the state agency level.6
Once a BSEA decision is issued, it “shall be implemented immediately”.7 This unambiguous directive, found within state special education regulations and BSEA Hearing Rules, makes no distinction between a decision ordering reimbursement and a decision ordering prospective educational services and placement or a decision ordering any other relief.8 The requirement that the BSEA decision be implemented immediately is not affected by an appeal of the decision to court.9 In the event that a party seeks to delay its responsibility to implement a BSEA decision, the party must seek a stay.10
Notwithstanding the clarity and lack of exceptions in the mandate of the above-referenced regulations and Hearing Rules that a BSEA decision “shall be implemented immediately”, Sudbury takes the position that “the immediacy of implementation does not apply to any other relief except an order for placement.” Sudbury’s opposition at 8. In support of this argument, Sudbury relies on court decisions that Sudbury believes stand for the proposition that retroactive reimbursement is only a “remedy ultimately for the courts, if an appeal is taken.” Id.
My reading of the IDEA and federal court decisions is to the contrary. In 2009, the United States Supreme Court in its Forest Grove decision reaffirmed its prior decision in School Committee of Town of Burlington, Mass. v. Department of Educ. of Mass. , 471 U.S. 359, 370, 105 S.Ct. 1996 (1985), which interpreted the IDEA “to authorize hearing officers as well as courts to award reimbursement” when a school district proposes an inappropriate IEP and the parent unilaterally places the student into an appropriate private placement.11 The Supreme Court made clear that in an IDEA dispute with respect to reimbursement, the authority of a hearing officer and the authority of a court are concurrent.12
In light of Forest Grove and Burlington , there can be little doubt as to the authority of a BSEA hearing officer to order Sudbury to reimburse Parent for her out-of-pocket expenses related to the unilateral placement of her son at Carroll for 6 th grade. In order for Sudbury to avoid an immediate obligation to comply with such a BSEA order, a stay of the order would have to issue. I am aware of no authority that would support an automatic stay simply on the basis of Sudbury’s appeal to federal court. To my knowledge, Sudbury has not sought (or indicated any intention to seek) a stay of the April 9, 2010 Decision.
Moreover, even were I to agree with Sudbury and conclude that the federal special education statute (IDEA) as interpreted by the courts, does not require immediate implementation of a BSEA Hearing Officer’s order for reimbursement, Sudbury would be required to comply with the above-referenced state special education regulations requiring Sudbury to implement the reimbursement order immediately.13 This is because states are “free to exceed, both substantively and procedurally, the protection and services to be provided to its disabled children.”14 Sudbury must comply with the higher state standards, which are incorporated into the IDEA .15
In Massachusetts, the state educational standards incorporated into the IDEA are found within state statute and state education regulations .16 The Massachusetts special education regulations characterize its standards as setting forth requirements that “are in addition to, or in some instances clarify or further elaborate, the special education rights and responsibilities set forth in state statute (M.G.L. c. 71B), federal statute (20 U.S.C. §1400 et seq. as amended), and federal regulations (34 CFR §300 et seq. as amended).”17 The above-discussed Massachusetts special education regulation that requires immediate implementation of a BSEA decision is one such state standard.18
Accordingly, I find that state regulations and BSEA Hearing Rules require immediate implementation of the April 9, 2010 Decision. Under the federal special education law as interpreted by the Supreme Court, a hearing officer has the same authority as a federal court to order reimbursement. There is no automatic stay simply on the basis of Sudbury’s appeal to federal court. Moreover, even if Sudbury were correct that the federal statutory standards do not support immediate implementation of a reimbursement award, I further find that Sudbury must nevertheless comply with the higher state regulatory standard regarding immediate implementation of a BSEA Hearing Officer’s decision. For these reasons, I conclude that Sudbury must immediately reimburse Parent the out-of-pocket expenses to which she is entitled pursuant to the April 9, 2010 Decision.
I now turn to the second issue, which is whether Sudbury must fund Student at Carroll for the 2010-2011 school year. Parent argues that Student’s stay-put placement is Carroll, thereby requiring that, pending resolution of the dispute, Sudbury pay for this placement prospectively.
I must first determine whether Student’s prospective placement pursuant to his stay put rights can be determined through Parent’s Motion for Compliance .
As noted above, this Ruling addresses Parent’s claim that Sudbury is not in compliance with the April 9, 2010 Decision. The April 9, 2010 Decision did not consider Sudbury’s obligations regarding Student’s prospective placement.
The April 9, 2010 Decision determined only that Parent was entitled to reimbursement for her expenses from the 6 th grade (the 2009-2010 school year). Once Sudbury reimburses Parent for her out-of-pocket expenses for 6 th grade, Sudbury will be in full compliance with the Decision.
For these reasons, I conclude that the dispute regarding Student’s right to funding of prospective placement at Carroll is outside the scope of Parent’s Motion for Compliance .
ORDER
Parent’s Motion for Compliance with respect to reimbursement for her out-of-pocket expenses for Student’s 6 th grade is ALLOWED . Sudbury shall immediately reimburse Parent for expenses due under the April 9, 2010 Decision.
Parent’s Motion for Compliance with respect to funding Student’s prospective placement at Carroll is DENIED without prejudice.
By the Hearing Officer,
William Crane
Dated: September 9, 2010
COMMONWEALTH OF MASSACHUSETTS
Division of Administrative Law Appeals
Bureau of Special Education Appeals
THE BUREAU’S DECISION, INCLUDING RIGHTS OF APPEAL
Effect of the Decision
20 U.S.C. s. 1415(i)(1)(B) requires that a decision of the Bureau of Special Education Appeals be final and subject to no further agency review. Accordingly, the Bureau cannot permit motions to reconsider or to re-open a Bureau decision once it is issued. Bureau decisions are final decisions subject only to judicial review.
Except as set forth below, the final decision of the Bureau must be implemented immediately. Pursuant to M.G.L. c. 30A, s. 14(3), appeal of the decision does not operate as a stay. Rather, a party seeking to stay the decision of the Bureau must obtain such stay from the court having jurisdiction over the party’s appeal.
Under the provisions of 20 U.S.C. s. 1415(j), “unless the State or local education agency and the parents otherwise agree, the child shall remain in the then-current educational placement,” during the pendency of any judicial appeal of the Bureau decision, unless the child is seeking initial admission to a public school, in which case “with the consent of the parents, the child shall be placed in the public school program”. Therefore, where the Bureau has ordered the public school to place the child in a new placement, and the parents or guardian agree with that order, the public school shall immediately implement the placement ordered by the Bureau. School Committee of Burlington, v. Massachusetts Department of Education , 471 U.S. 359 (1985). Otherwise, a party seeking to change the child’s placement during the pendency of judicial proceedings must seek a preliminary injunction ordering such a change in placement from the court having jurisdiction over the appeal. Honig v. Doe , 484 U.S. 305 (1988); Doe v. Brookline , 722 F.2d 910 (1st Cir. 1983).
Compliance
A party contending that a Bureau of Special Education Appeals decision is not being implemented may file a motion with the Bureau contending that the decision is not being implemented and setting out the areas of non-compliance. The Hearing Officer may convene a hearing at which the scope of the inquiry shall be limited to the facts on the issue of compliance, facts of such a nature as to excuse performance, and facts bearing on a remedy. Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief, including referral of the matter to the Legal Office of the Department of Education or other office for appropriate enforcement action. 603 CMR 28.08(6)(b).
Rights of Appeal
Any party aggrieved by a decision of the Bureau of Special Education Appeals may file a complaint in the state court of competent jurisdiction or in the District Court of the United States for Massachusetts, for review of the Bureau decision. 20 U.S.C. s. 1415(i)(2).
An appeal of a Bureau decision to state superior court or to federal district court must be filed within ninety (90) days from the date of the decision. 20 U.S.C. s. 1415(i)(2)(B).
Confidentiality
In order to preserve the confidentiality of the student involved in these proceedings, when an appeal is taken to superior court or to federal district court, the parties are strongly urged to file the complaint without identifying the true name of the parents or the child, and to move that all exhibits, including the transcript of the hearing before the Bureau of Special Education Appeals, be impounded by the court. See Webster Grove School District v. Pulitzer Publishing Company , 898 F.2d 1371 (8th Cir. 1990). If the appealing party does not seek to impound the documents, the Bureau of Special Education Appeals, through the Attorney General’s Office, may move to impound the documents.
Record of the Hearing
The Bureau of Special Education Appeals will provide an electronic verbatim record of the hearing to any party, free of charge, upon receipt of a written request. Pursuant to federal law, upon receipt of a written request from any party, the Bureau of Special Education Appeals will arrange for and provide a certified written transcription of the entire proceedings by a certified court reporter, free of charge.
1
Parent is represented by attorneys Joseph Green and Marie Mercier.
2
Sudbury is represented by attorney Regina Williams Tate.
3
See also 603 CMR 28.08 (6) (similarly providing for the filing of a motion for compliance).
4
20 USC 1412 (a)(10)(C)(ii); Florence County Sch. Dist. Four v. Carter , 510 U.S. 7, 11-13 (1993); Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, 370, 373-74 (1985); Diaz-Fonseca v. Puerto Rico , 451 F.3d 13, 31 (1 st Cir. 2006).
5
School Committee of Town of Burlington, Mass. v. Department of Educ. of Mass. , 471 U.S. 359, 370-71, 105 S.Ct. 1996 (1985).
6
See 20 U.S.C. s. 1415(i)(1)(B) (“decision made under subsection (g) shall be final, except that any party may bring [a civil action in court] under paragraph (2)”); 603 CMR 28.08 (6) (“decision of the hearing officer of the Bureau of Special Education Appeals … shall not be subject to reconsideration by the Bureau of Special Education Appeals or the Department”).
7
603 CMR 28.08 (6) (“ Hearing Decision. The decision of the hearing officer of the Bureau of Special Education Appeals shall be implemented immediately ….”); BSEA Hearing Rule XIII C ( “Immediate Implementation. Except as provided below in Rule XIV, the Hearing Officer’s decision shall be implemented immediately.”)
8
603 CMR 28.08 (6); BSEA XIII C.
9
See 603 CMR 28.08 (6) (“ Hearing Decision. The decision of the hearing officer of the Bureau of Special Education Appeals shall be implemented immediately …, but may be appealed to a court of competent jurisdiction.”). See also BSEA Hearing Rule XIII C ( “Immediate Implementation. Except as provided below in Rule XIV, the Hearing Officer’s decision shall be implemented immediately.”)
10
BSEA Hearing Rule XIV C ( “A party seeking to stay the Hearing Officer’s decision must seek and obtain a stay from the court having jurisdiction over the party’s appeal.”). See also MGL c.30A s. 14(3) ( “ commencement of an action [in court] shall not operate as a stay of enforcement of the agency decision …”).
11
Forest Grove Sch. Dist. v. T.A ., 129 S.Ct. 2484 , 2494, n.11 (2009).
12
Id. at 2494, n.11, and 2496.
13
603 CMR 28.08 (6).
14
Town of Burlington v. Department of Education , 736 F.2d 773, 792 (1 st Cir. 1984), aff’d 471 U.S. 359 (1985).
15
20 USC 1401(9)(b); Winkelman v. Parma City School Dist., 127 S.Ct. 1994, 2000-2001 (2007) (“education must … meet the standards of the State educational agency); Mr. I. v. Maine School Administrative District No. 55, 480 F.3d 1 , 11 (1 st Cir. 2007) (state may “ calibrate its own educational standards, provided it does not set them below the minimum level prescribed by the [IDEA]”).
16
MGL c. 71B, ss. 1 (definition of free appropriate public education incorporating state statute and state special education regulations), 2, 3.
17
603 CMR 28.01(2).
18
603 CMR 28.08 (6).