Ursula and Ware Public Schools – BSEA # 09-0340



<br /> Ursula and Ware Public Schools – BSEA # 09-0340<br />

COMMONWEALTH OF MASSACHUSETTS

Bureau of Special Education Appeals

In Re: Ursula1 and Ware Public School

BSEA# 09-0340

Ruling on Motion to DISMISS

This matter comes before the Bureau on the Motion of the Ware Public Schools to Dismiss the parts of the Parent’s hearing request that concern claims arising prior to July 8, 2006 and the Parent’s Opposition thereto. The Parent filed a hearing request on July 11, 2008 alleging that multiple violations of the Student’s special education due process rights during the 2005-2006 school year prevented the Student from receiving a free, appropriate public education and entitled her to an award of compensatory education. The Parent also claimed that Ware failed to provide an accepted special education service from December 2005 through the present, forming an independent basis for a compensatory education claim. On August 8, 2008 Ware filed a Motion to Dismiss all claims arising prior to July 8, 2006 as untimely and barred by the Statute of Limitations. The Parent filed an Opposition on August 12, 2008. The parties requested that the Hearing Officer defer ruling on the Motion while they pursued settlement negotiations. During a status conference call held on November 18, 2008 the parties reported that they had been unable to reach an agreement and requested a ruling on the outstanding Motion and assignment of dates for hearing, if necessary.

Factual Background

1. Ursula is a now 22 year old individual with complex and substantial disabilities, including developmental delays, autism and cerebal palsy. She received special education services through the Ware Public Schools beginning in the 2003-2004 school year.

2. Ursula’s parent is also her court-appointed guardian.

3. Ursula’s parent unilaterally withdrew Ursula from school in June 2006, when she was 19 years old.

4. The last accepted IEP for Ursula covers the 2005-2006 school year. The parent partially accepted a proposed 2006-2007 IEP, by agreeing to an extended evaluation in September 20062 , and by accepting a school-provided specialized communication device in January 2007. The parent otherwise rejected the placement and services offered in both the 2006-2007 and 2007-2008 IEPs proposed by the Ware Public Schools. There is no showing in the record that the parent has provided any alternate special education services to Ursula since June 2006.

5. On July 11, 2008 the Parent filed a request for hearing alleging that Ursula’s due process rights to a free, appropriate public education had been denied as a result of:

A. the School’s ongoing failure to provide a specialized communication device as set out in the Student’s December 2005 IEP;

B. unilateral changes to the Student’s IEP made by the Ware Public Schools in December 2005;

C. the School’s failure to appropriately implement Ursula’s IEP as evidenced by placing her in an unsupervised, locked room in May 2006;

D. the School’s failure to appropriately train and supervise educational personnel as evidenced by an incident in which a classroom aide “choked” Ursula during a restraint.

The Parent seeks an award of compensatory education as a remedy for the alleged IDEA violations.

6. There is substantial electronic communication, as well as evidence of face-to-face meetings, between the parent and Ware special education staff between December 2005 and July 2008, concerning the circumstances that form the basis of the Parent’s hearing request. (Ware Response Ex, 105; Ware Motion to Dismiss Ex. 2, 3, 4, 5, 6) Nonetheless the Parent asserts that she did not know until June 2008 that an alleged “choking” incident had occurred in May 2006. There is no indication in the record as to how the parent came by that knowledge. (Parent Opposition to the Ware Motion to Dismiss Ex. 3)

7. In September 2008, coinciding with Ursula’s 22 nd Birthday, an Individual Transition Planning Team, assigned responsibility for providing to Ursula adult services to the Department of Mental Retardation.

Legal Framework

The IDEA 2004 expressly limits presentation of claims to the Bureau of Special Education Appeals to those arising during the two year period immediately preceding the filing of the hearing request unless the parent can establish that the school specifically misrepresented or withheld critical pertinent information concerning the incident complained of 20 U.S.C. 1415(b)(6) and 20 U.S.C. 1415(f)(3)(D); 34 CFR § 300.507 and 34 CFR. § 300.511(f). Therefore, the Parent here may only present claims arising after July 11, 2006 unless she can show that she did not know and could not have known about the potential IDEA violation because of the School’s prohibited action.

Motions to Dismiss IDEA claims, while permissible, are viewed critically as the special education dispute resolution system is highly fact dependent and most of those facts are developed and presented at due process events such as mediation and hearings rather than through investigations or discovery. A Motion to Dismiss may be granted when, viewing the agreed upon facts in the light most favorable to the non-moving party, no set of facts can be proved that would entitle the party opposing dismissal to relief from the Bureau of Special Education Appeals. BSEA Rule 17 (B) (4); 801 CMR 1.01 (7) (g) (3).

Discussion

Several of the claims advanced by the parent are clearly subject to dismissal pursuant to the IDEA’s two year statue of limitations. Only claims arising after, or continuing beyond, July 1 2006, remain viable. The Parent’s claims that Ware made unilateral changes to Ursula’s IEP in December 2005, and that Ursula was isolated in a locked room in May 2006, both of which were known by the Parent and the subject of contemporaneous discussions between the parties, fall within the Statute of Limitations and are barred. The Parent’s claim that Ware has failed to provide an accepted special education service, ie. a specialized communication device, survives dismissal for the time period spanning July 11, 2006 through the present.

The Parent’s claim that a Ware Public School paraprofessional used improper restraint techniques with Ursula resulting in a choking incident in May 2006, is more problematic. While the incident complained of occurred prior to July 11, 2006 and therefore BSEA consideration of the event should be simply chronologically barred by IDEA’s statue of limitations, the Parent alleges that she did not “discover” the choking incident until June 2008. She provides no facts to support her allegation of a newly discovered claim. The electronic correspondence concerning the events of the 2005-2006 school year submitted as Motion Exhibits by both parties does not settle the question of the parents knowledge of the specific event alleged. On the other hand neither do those documents show any attempt on the part of the Ware Public Schools to misrepresent its actions or to hinder the Parent’s access to the due process system. Viewing the Parent’s claims and assertions of fact in the light most favorable to continued prosecution, as I must, I find that there is support, however thin, for retaining jurisdiction of the Parent’s claim that a May 2006, improper restraint violated Ursula’s right to a free, appropriate public education. Absent proof, not present in this record, that the Parent knew or should have known of the alleged choking incident prior to July 11, 2006. I find both the actual occurrence of a “choking” incident and the Parent’s knowledge of it to be factual questions to be resolved at hearing. I further find that presentation of those claims is not barred by 20 U.S.C. 1415(b)(6).

Order

T he Motion of the Ware Public Schools to Dismiss the Parent’s IDEA claims is GRANTED in part and DENIED in part. The Parent’s claims concerning unilateral IEP changes made to and implementation of the 2005-2006 IEP are barred by the IDEA’s 2 year Statute of Limitations. The Parent’s claim that Ware has failed to provide the Student with a specialized communication device is limited to the time period July 11, 2006 to the present. The Parent’s claim that Ware failed to properly train and supervise a classroom assistant resulting in a denial of a free appropriate public education in May 2006, may be presented to the BSEA.

The parties shall provide the Hearing Officer with a status report no later than December 22, 2008 indicating at least five mutually agreeable dates for hearing on the Parents remaining claims.

December 3, 2008

Lindsay Byrne, Hearing Officer


1

“Ursula” is a pseudonym selected by the Hearing Officer to protect the privacy of the Student in documents available to the public.


2

The evaluation was never completed due to Student nonparticipation.


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