Taunton Public Schools – BSEA # 10-8142



<br /> Taunton Public Schools – BSEA # 10-8142<br />

THE COMMONWEALTH OF MASSACHUSETTS

Division of Administrative Law Appeals

Bureau of Special Education Appeals

In Re: Taunton Public Schools

BSEA #10-8142

RULING ON SCHOOL MOTION TO DISMISS

This matter comes before the Hearing Officer on the Motion of the Taunton Public Schools to Dismiss with Prejudice the Hearing Request filed by the Parent on June 10, 2010. Oral arguments were heard on the Motion and the Parent’s Opposition thereto on August 11, 2010 by way of a telephone prehearing conference. After careful consideration of the undisputed and the disputed facts identified by the parties, as well as the arguments of the Parent’s advocate and Taunton’s lawyer, it is my determination that Taunton’s Motion should be denied and this matter should proceed to hearing. My reasons follow:

The Massachusetts Adjudicatory Rules of Practice and Procedure 801 CMR 1.01(7)(g)3 and the corresponding BSEA Rule 17B provide that a Hearing Officer may allow a Motion to Dismiss an appeal if the party requesting the hearing fails to state a claim upon which relief can be granted. BSEA practice, consistent with 20 U.S.C. 1415(7) permits an modified form of notice pleading. So long as the responding party is able to discern the identity and location of the Student and the parents/guardians, the nature of the dispute, and the scope of the relief requested, a hearing request will be found “sufficient” to proceed to hearing. Here the Parent filed a BSEA Hearing Request seeking a determination that Taunton Public Schools violated the Student’s substantive and procedural IDEA due process rights by failing to respond appropriately to the Parent’s request for a Transitional Services assessment. In the Hearing Request the Parent seeks four forms of relief in the event she prevails at the Hearing: 1.) compensatory educational services; 2.) Independent Educational Evaluation; 3.) IDEA Training for Taunton Public Schools personnel; and 4.) monetary damages. Taunton argues that the BSEA cannot award any of the relief requested by the Parent and therefore that Dismissal of her claim is warranted.

First, Taunton argues that the Parent has not met her burden of demonstrating both the specific procedural due process allegations and the associated consequential harm to the student which is required for an award for compensatory education. See 20 U.S.C. § 1415 (F)(3)(E)(2)(iii). It asserts that the Parent is therefore requesting hypothetical relief that the BSEA cannot grant. At this stage that is true. All facts set out in the Hearing Request must be proved at a hearing in order to form a basis for awarding relief. They need not, indeed cannot, be “proved” in a Hearing Request. The standard for assessing facts in a hearing request is not whether they are true, but whether if true they would warrant relief. Viewing the facts alleged in the Hearing Request in the light most favorable to the Parent, I find that the request meets both the sufficiency standards required by 20 U.S.C. 1415(7) and, if proved, could form the basis for the compensatory education she seeks.

Second, Taunton argues that the Parent is precluded from seeking an Independent Evaluation through the Hearing process as Taunton has already agreed to fund one. At this point, however, there is no completed independent evaluation. Thus it remains potential relief indisputably related to the original claim for a Transitional Assessment.

Third, Taunton asserts that a Hearing Officer may not order specific training of its personnel or alternatively, that it would not be justified in the circumstances of this case. On the contrary, BSEA Hearing Officers have equitable jurisdiction to require training for publicly funded employees when appropriate and necessary to affect IDEA guarantees. Whether that sort of relief is justified will be determined when the facts are found after a hearing. In Re: Dracut Public Schools , 15 MSER 78 (2009).

Finally, Taunton contends that since the BSEA lacks authority to award monetary damages, the Parent’s request for that form of relief establishes a proper basis for dismissal. Not so. The BSEA is charged with determining the facts surrounding any claim of educational or procedural deprivation under the IDEA and/or Section 504 that might later be the basis of a related appeal in court seeking money damages. In re: Mashpee Public Schools , 14 MSER 143 (2008).

I find therefore, that the Parent has stated a claim cognizable under IDEA 2004, and is seeking at least some relief through the administrative hearing process authorized by that statute which the BSEA has the authority to award. Nothing more is required this stage of proceedings.

ORDER

The Motion of the Taunton Public Schools to Dismiss the Parent’s Hearing Request is DENIED .

By the Hearing Officer

_________________________

Dated: August 13, 2010


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