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In Re: Student & Braintree Public Schools BSEA# 25-11326

COMMONWEALTH OF MASSACHUSETTS

DIVISION OF ADMINISTRATIVE LAW APPEALS

BUREAU OF SPECIAL EDUCATION APPEALS

In Re: Student & Braintree Public Schools

BSEA# 25-11326

RULING ON DISTRICT’S MOTION AND SUPPLEMENTAL MOTION TO DISIMISS OR IN THE ALTERNATIVE MOTION FOR SUMMARY JUDGMENT

This matter comes before the Hearing Officer on the Braintree Public School District’s (District’s) Motion to Dismiss or in the Alternative Motion for Summary Judgment and Supplemental Motion to Dismiss or in the Alternative Motion for Summary Judgment (collectively Motions) filed with the BSEA on April 24, 2025, and May 2, 2025, respectively.  As grounds for its Motions, the District asserts that most of the claims are precluded as they were previously litigated; that Parent seeks relief beyond the BSEA’s jurisdiction; that compensatory services after June 2024 are not warranted as Parent’s own actions have impeded the District’s ability to timely evaluate Student, properly place her and provide her with appropriate interim educational services; and that Parent has not been denied meaningful participation in decision-making due to language barriers and lack of translation, as the District provided Parent with a XXXX translation of all special education documents and XXXX interpreters at all meetings, as well as access to translation through its ParentSquare platform or interpretation support by phone with a XXXX interpreter at all times.  On July 11, 2025, Parent filed a document entitled Motion To Enforce Document Production and Extend Time to Respond to the District Motion to Dismiss Scheduled for Today 5 PM (July 11, 2025 Pleading), which, as explained below, is considered to be Parent’s response to the Motions.  For the reasons articulated below, the Motions are ALLOWED in substantial part but DENIEDin limited part[1].

RELEVANT PROCEDURAL HISTORY AND SUMMARY OF HEARING REQUEST CLAIMS

On April 14, 2025, Parent filed a thirteen-page Hearing Request against the District.  The Request consisted of an untitled initial summary of claims, and an unnumbered section entitled “Legal Precedents Supporting [Student’s] Case”, followed by the following sections: “I. Introduction & Request for Hearing”; “II. Timeline of Events & District Violations”; “III. Legal Violations”; “IV. Requested Remedies”; “V. Witness List”; “VI. Witness Questions”; “VII. Strategy for Restoring Appropriate Placement”; “III. (sic) Legal Violations:  A Deeper Analysis”; “IV. (sic) Strategy for Winning the Case”; and “V.  (sic) Conclusion”. 

The Hearing Request contains claims as to Parent and Student that fall within three categories – claims arising wholly prior to June 2024[2], claims for which no specific dates are provided, and claims arising in whole or in part after June 2024, as follows[3]: 

  1. Claims Arising Wholly Prior to June 2024
  1. The District and South Shore Educational Collaborative (SSEC) violated Student’s “stay put” rights “by terminating her placement at SSEC on February 17, 2023, without proper notice or parental consent”.
  2. The District “unilaterally removed [Student] from Fusion [Academy (Fusion)] in September 2023, without holding a proper IEP meeting, issuing prior written notice, or obtaining parental consent…”, “misrepresented Fusion[’s] status to justify termination” and has improperly refused to allow Student to return to Fusion, which is her “stay put” placement.
  3. In November 2023, the District improperly “requested that a parent sign an agreement relinquishing her IEP and any services for their daughter. The request includes an absurd condition that the parent must go against their own child with the district lawyer”[4]. 
  4. The District denied Student a FAPE “from February 17th [] 2023 to March 20th [] 2023”.
  5. The District failed to “develop and implement an IEP for over a year (April 2023 – June 2024)”
  6. In “April[] 2024 [the District] [m]isrepresent[ed] [Student’s] disabilities and needs in superior court result[ing] in her being transferred to two schools (one regular public school), [and the D]istrict knowingly put the child in this situation that were (sic) ill-prepared to accommodate her. This lack of accommodations ultimately led to her hospitalization and a severe mental breakdown, requiring multiple crisis visits and medications for the child in April and May of 2023”.
  1. Undated Claims
  1. The District violated “603 CMR 28.07(8)(b), which mandates that all communications be in the parent’s native language, in this case, [XXXX], to ensure meaningful participation”.
  2. The District offered Student “1:1 tutoring in a public library for one hour [a] couple times [a] week, [or the] other option was Verge where she would learn virtually, despite the fact that the child’s disability prevents her from learning online” and “misled [Parent] to believe she had no other options and was not provided necessary documentation in her native language” actions that “significantly interfered with [Parent’s] ability to participate in decision-making regarding her daughter’s education”.
  3. The District “[r]efus[ed] to provide an appropriate evaluation setting despite medical and clinical recommendations”.
  4. The District “engag[ed] in retaliation and procedural misconduct, such as misrepresentations, denial of parental participation, violations of confidentiality, discrimination, contacting Child Protective Services, altering dates on documents, refusal to provide translation, refusing [to] provide transportation, services, and providing false information in court” including “intentional misrepresentation of legal obligations, including falsely claiming Fusion [ ] was not an appropriate placement” and “[r]etaliation against the parent, including legal threats, procedural manipulation, and intimidation tactics to force compliance, [and] using DCF as a weapon against parent”.
  5. The District “[f]ail[ed] to follow special education procedural safeguards, including fail[ing] to provide prior written notice and failing to involve necessary IEP team members”.
  1. Claims Dated In Part or In Whole after June 2024
  1. “Student has been without a proper school placement since September 2023 due to unilateral decisions made by [the District] and [SSEC]” and was generally denied a FAPE in violation of various state and federal education laws[5].
  2. In December 2024, the District improperly “threatened both the parent and the child with involvement from the Department of Children and Families (DCF). They repeatedly filed false 51A reports and even went as far as calling the police when the child was in distress, leading to the child being taken to the hospital by ambulance from the school”.
  3. On six occasions from January 2025 to March 2025, the District “[c]ancel[ed], purposely delay[ed] and reschedule[ed] evaluations without providing adequate notice to parents to coordinate other appointments, yet still reporting to DCF that it is the mother’s fault, resulting in the loss of medical providers for both the child and the mother, but also miss leaded (sic) the court and DCF”[6].

The Hearing Request seeks the following relief:

  1. “Immediate reinstatement of [Student] at Fusion Academy as her Stay Put placement”;
  2. “Legal fees for the parent to have chance represent meaningfully her case”[7];
  3. 1,200 hours of “Compensatory education services for the entire period [Student] was denied FAPE (September 2023 – present)”;
  4. “Development of an appropriate IEP”;
  5. “Independent Educational Evaluations (IEEs) at public expense, including neuropsychological and trauma-informed assessments”;
  6. “Translation of all educational documents and meetings into [XXXX] to ensure parental participation”;
  7. “Federal oversight into BPS’s special education practices” and “A court injunction against BPS for systemic violations of IDEA and Section 504 of the Rehabilitation Act”;
  8. “Accountability measures against BPS for procedural violations and bad-faith actions”; and
  9. “PBS (sic) has to disclose the amount of funds allocated towards legal fees and other expenses incurred in the fight against [Student’s] right to attend school from November 1, 2023, to the present date”.

On April 15, 2025, a Notice of Hearing was issued scheduling this matter for a Hearing on May 19, 2025. 

On April 24, 2025, and May 2, 2025, respectively (with XXXX translations being provided on May 6, 2025, and May 9, 2025), the District filed the Motions.  Contemporaneously, the District also sought a postponement of the initial Hearing date to provide time for Parent to respond to the Motions and for a Ruling to issue, given the potential dispositive implications that may result from a Ruling.  The postponement was subsequently granted for good cause, and the Hearing was rescheduled to August 11 and 12, 2025[8].

On June 16, 2025, Parent requested an additional 20 days to respond to the Motions.  On June 18, 2025, this request was allowed over the District’s objection and Parent was provided until 5:00 p.m. on July 11, 2025, to file a response to the Motions. 

On June 25, 2025, the District sought a further postponement of the Hearing which the Parties jointly discussed during a Conference Call held on July 11, 2025 (rescheduled at Parent’s request from July 8, 2025) with a XXXX interpreter provided at no cost[9]. 

During the Conference Call on July 11, 2025, Parent was reminded about the pending deadline that day to file a response to the Motions.  Parent replied by advising she was unable to file a response based upon her ongoing argument raised throughout these proceedings that she had not received documents she requested from the District.  Although Parent was advised that this argument had previously been addressed in a Ruling (entitled “Ruling on Seven Motions and Objections” issued on June 3, 2025 and sent to the Parties in both XXXX and English), and that the District had confirmed by written document its compliance with the resulting order in that Ruling, Parent persisted in her reiteration of the argument throughout the Call.  Thus, Parent was invited to put her objection in writing and advised that this written objection would be considered as her response to the Motions. 

On July 11, 2025, after the Call, Parent filed the July 11, 2025 Pleading claiming that the District’s “ongoing failure to produce the requested documents – and the BSEA’s refusal to compel production – is severely harming my ability to prepare for this hearing and to respond to the District’s motions”.  Parent again contended that she had not received all documents requested, or translations of all documents produced and argued that this violated her “due process rights” to “examine records and participate fully in the hearing process”.  Parent requested the following orders:  for the District to “produce all requested documents, unredacted, organized and fully translated into XXXX and English at the same time”; that “no motions from the District be acted on until I have received all documents and translations I requested in April 2025”; to “extend my response deadlines until at least 10 business days after I receive the full documents and certified translations so I have a fair chance to prepare”; and to “acknowledge on the record that denying me full document production violates my state and federal due process rights and unfairly benefits the District”. 

On July 16, 2025, the Hearing was further postponed for good cause until September 30, 2025, and October 10, 2025, at the joint request of the Parties[10].

ADDITIONAL RELEVANT PROCEDURAL HISTORY

This is not the first due process hearing or special education related litigation involving the Parties hereto.  Thus, in addition to the relevant procedural history of the instant matter set forth above, I also take administrative notice of the prior BSEA and Superior Court proceedings involving Student’s special education in issuing this Ruling.  Specifically, I take administrative notice of the prior BSEA matter before Hearing Officer Berman, that resulted in a Decision after a hearing on the merits, published as In Re:  Braintree Public Schools, BSEA No. 2409030 (Prior BSEA Matter).  I also take administrative notice of the Norfolk County Superior Court Civil Action filed by Parent against the District in April 2024, seeking a preliminary injunction to place Student at Fusion during the pendency of the then-pending special education dispute between the Parties, known as Civil Action No. 2482CV00346 (Superior Court Matter).

Given the District’s arguments involving res judicata and collateral estoppel, I first set forth a summary of the prior BSEA Decision and the Superior Court Orders.  I then set forth a summary of Team meetings and other Court and agency intervention occurring since the Prior BSEA Matter that has relevance to my analysis in this Ruling. 

The Prior BSEA Decision

  1. On March 4, 2014, the District filed a Hearing Request in the Prior BSEA Matter.  On October 11, 2025, a Decision was issued after a ten-day hearing on the merits (occurring during May, June, July, August and September of 2024), addressing the following issues “… with respect to the time period of September 2022 to June 2024:
    1. Whether the [District] has made a good faith effort to provide Student with a free, appropriate public education (FAPE) and that Parent’s alleged refusal of all offered services has impeded Braintree’s ability to provide Student with FAPE;
    2. Whether Braintree has offered appropriate locations to evaluate Student and whether Parent’s refusal to make Student available for such evaluation, to visit those proposed locations, and/or speak with evaluators regarding proposed testing is impeding Braintree’s ability to evaluate Student;
    3. Whether Parent’s refusal to engage in the intake process for placement at High Roads [School] and overall alleged limitation of Braintree’s ability to communicate with potential placements is impeding Braintree’s ability to identify a new placement for Student consistent with her IEP;  
    4. Whether, due to Parent’s alleged refusal of all tutoring and counseling services offered by Braintree for the 2023-2024 school year as well as refusal to permit sending of referral packets in a timely manner, Student is not entitled to compensatory services for this period.”
  1. The Decision in the Prior BSEA Matter made fifty-one Findings of Fact for the time-period specified, including but not limited to findings pertaining to what transpired with regard to Students termination from SSEC (Findings of Fact 16, 17 and 18); findings pertaining to the District’s offer of “temporary” “tutoring services” at Fusion (Findings of Fact 18, 19, 20, and 21, 24, 25 and 47); findings pertaining to Fusion’s termination of Student on June 21, 2023, its subsequent offer to continue to support Student at Fusion and the District’s declination to agree to that (Finding of Fact 28); findings pertaining to attempted resolution negotiations between July and December 2023 while Parent was represented by “Attorney A” (Finding of Fact 31); findings pertaining to Parent’s pursuit of a preliminary injunction at the Superior Court in April 2024 (Finding of Fact 48); and specifically the following:
  1. Finding of Fact 33:  “… In an N-1 Form dated December 28, 2023, Braintree proposed to tutor Student while engaging in the evaluation and referral process.  Tutoring was offered in person, with Braintree staff, either at the high school or public library, or virtually, through a company.  The District also offered counseling 1×30, weekly”; and
  1. Finding of Fact 50: On June 10, 2024, the Team convened to consider Dr. Fahey’s evaluation, and issued a proposed IEP covering June 10, 2024, to March 25[,] 2025, [(24-25 IEP)]. This IEP incorporated data and recommendations from Dr. Fahey’s report as well as from SSEC … The IEP also provided for an array of accommodations ….  Student would have a shortened school day (starting at 10:00 AM) while data was being gathered to support full-day attendance.  Lastly, the IEP proposed extended school year (ESY) services to prevent regression….   The placement page called for a private day school.  On July 7, 2024, Parent accepted the proposed placement, and accepted most of the remainder of the IEP, rejecting only the District’s use of the term “therapeutic day school” instead of “substantially separate private day school,” because the term “therapeutic” was not defined.”[11].
  1. The Decision in the Prior BSEA Matter also made determinations as to the four issues for the time period specified (September 2022 to June 2024), including: 
  1. “Braintree Public Schools met its burden of proving that it made a good faith effort to provide Student with a FAPE, and that Parent’s refusal of most offered services impeded the Districts efforts” (Overall conclusion on Issue 1, page 25);
  1. “… After SSEC terminated Student’s placement, Braintree made an immediate offer of tutoring by District staff, which Parent rejected.  Parent presented no evidence at hearing supporting such rejection.  Braintree then proposed to purchase tutoring services from [Fusion] as a temporary measure to provide Student with some instruction while a new placement was sought and took necessary measures to secure Fusion’s services.  Although Fusion is not an approved special education program, and did not implement IEP goals, Braintree was willing to fund it temporarily in the interest of ensuring that Student received some type of instruction during the search process for a successor therapeutic placement.” (From Analysis of Issue 1, page 26);
  1. “Braintree has met its burden to prove that Parent’s refusal to engage in the intake process for placement at High Roads [School] and overall limitation of Braintree’s ability to communicate with potential placements impeded Braintree’s ability to identify a new placement for Student consistent with her IEP” (Overall conclusion on Issue 3, page 28);
  1. “Parent is entitled to limited compensatory services due to Braintree’s failure to issue an IEP in a timely manner after expiration of the IEP in April 2023” (Overall conclusion on Issue 4, page 30); and
  1. “Taking the above into consideration and noting that an award of compensatory services is in the nature of an equitable remedy, I find that Student is eligible for compensatory services corresponding to the period of April 2023, when the IEP expired, to November 29, 2023, when Braintree issued an invitation to a Team meeting for an annual review.  The nature of such compensatory service shall be determined by the Team.” (From Analysis of Issue 4, page 30).

The Superior Court Matter

  1. In April 2024, Parent brought the Superior Court Matter against the District seeking a preliminary injunction that the Court Order Student’s “stay put” educational placement be officially changed to Fusion.  After a one-day Hearing on the Motion, by written Memorandum and Order of April 18, 2025, the Court denied Parent’s request for a “stay put” order at Fusion, finding that neither SSEC nor Fusion was a viable placement for Student.  Instead, Student’s “stay put” placement was Ordered to be “any IEP that was agreed by Parent and Braintree prior to 2019, before Student enrolled in SSEC.  If Student was not enrolled in [an] IEP prior to SSEC, [the] Court then ORDERS virtual or in-person tutoring and services to Student, starting from April 22, 2024 [when school resumes after school vacation], to [the] end of her school year”.   (Motions, Exhibit D).
  1. On April 25, 2025, Parent filed an Emergency Motion for Reconsideration in the Superior Court Matter and after a Hearing on this Emergency Motion, the Court modified its April 18, 2025 Order to indicate that “For tomorrow, Friday 4/25/24, the child will receive online tutoring and services (which Braintree indicates they can implement by tomorrow).  Starting Monday, 4/29/25 and until [the BSEA’s] decision or until [the] end of the school year, the mother can choose between two options:  1) High Road School placement, a private therapeutic school or 2) online tutoring/services.”  (Motions, Exhibit E).

Undisputed Other Relevant Procedural History

  1. On October 29, 2024, the District reconvened Student’s Team to discuss providing compensatory services consistent with the Decision in the Prior BSEA Matter.  The District proposed compensatory services as follows:  390 minutes of Counseling; 390 Minutes of Math; 387.5 hours of Academic/Behavioral Support, and 132 hours of Extended School Year services to occur during school breaks and summers following Student’s placement at an approved day school (Motions, Exhibit L).
  1. The Problem Resolution System (PRS) Office of the Department of Elementary and Secondary Education (DESE) contacted the District after receiving a copy of the Decision in the Prior BSEA Matter (PRS BSEA #1150).  By an undated letter, PRS sought evidence of the District’s compliance with the Decision by February 14, 2025.  PRS then issued a second undated “Letter of Closure” of PRS BSEA #1150 finding that since it “received verification and assurance of the implementation of the BSEA order, this matter is now closed”.  (Motions,Exhibit M).
  1. On February 24, 2025, the Team convened for Student’s annual review and proposed a new IEP dated February 24, 2025 to February 23, 2026, (25-26 IEP) that continues to call for Student to be placed in a “Separate Day School – Private” with the location noted as “Therapeutic Day Program” [12].  The 25-26 IEP does not contain a signature from Parent but was signed by the District on March 24, 2025 (although the N1 accompanying it is dated March 18, 2025).  (Motions,Exhibit R).
  1. On April 10, 2025, the Norfolk County Juvenile Court issued an Order in a matter captioned In Re: Care and Protection of [Student] d.o.b. [XXX], Docket No. XXXXX (Care and Protection Matter) granting custody of Student to Mother with conditions that included as Paragraph 10 that “Mother shall cooperate with an educational GAL appointed by this Court”[13].  On the same date the Norfolk County Juvenile Court appointed an Educational Surrogate Guardian ad Litem (ES GAL) with the additional instructions for the “GAL to work with Mother and Child to obtain signed IEP & get [Student] enrolled in school”.  (Motions, Exhibit S).
  1. On April 17, 2025, the Court in the Care and Protection Matter issued the Clarification Order clarifying: “This Court has appointed [ES GAL] to serve as Educational GAL on [Student’s] behalf.  [ES GAL] shall be responsible for assisting in developing and signing an IEP in order to identify an appropriate school placement for the subject child and enroll [Student] in school.  [ES GAL] shall be the sole party designated to sign on behalf of [Student] for all IEP and school related issues that take place while this care and protection case remains open in the Norfolk Juvenile Court, until further action from the Court”.  (Motions, Exhibit S).

LEGAL STANDARDS

1. Motions to Dismiss.

Rule XVI(B)(1) and (4) of the Hearing Rules for Special Education Appeals and 801 CMR 1.01(7)(g)(3), allows for dismissal of a hearing request if the BSEA lacks jurisdiction over a claim or if a party requesting the hearing fails to state a claim upon which relief can be granted[14].  To survive a motion to dismiss, there must exist “factual ‘allegations plausibly suggesting (not merely consistent with)’ an entitlement to relief…”[15].  The hearing officer must take as true “the allegations of the complaint, as well as such inferences as may be drawn therefrom in the plaintiff’s favor”[16].  “Factual allegations must be enough to raise a right to relief above the speculative level… [based] on the assumption that all the allegations in the [hearing request] (even if doubtful in fact)”[17]. 

Motions to dismiss should be approached with caution, particularly when, as in the instant matter, the party filing the matter is pro se[18].  This principle aligns with “[o]ur judicial system [, which] zealously guards the attempts of pro se litigants on their own behalf” while not ignoring the need for compliance with procedural and substantive law[19].  However, even in such cases, “[w]hile ‘a trial judge is to employ less stringent standards in assessing pro se pleadings … than would be used to judge the final product of lawyers,’ this leniency does not permit the district court to act as counsel for a party or to rewrite deficient pleadings”[20].

In deciding the request for dismissal in the instant matter, in addition to considering the factual allegations in the Hearing Request (from which all inferences are drawn in Parent’s favor), I also consider the dispositive factual findings and determinations of the Prior BSEA Matter, the Superior Court Matter and the Care and Protection Matter for which I have taken administrative notice[21].

2. Motions for Summary Judgment.

801 CMR 1.01(7)(h) allows summary decision to be granted when there is “no genuine issue of fact relating to all or part of a claim or defense and [the moving party] is entitled to prevail as a matter of law”[22].  A genuine dispute as to a material fact exists if it involves a dispute of a fact that “carries with it the potential to affect the outcome of the suit” and “a reasonable [factfinder] could resolve the point in the favor of the non-moving party”[23]. 

The moving party bears the burden of proof, and all evidence and inferences must be viewed in the light most favorable to the party opposing summary judgment[24].  To successfully challenge a motion for summary judgment, the opposing party “must set forth specific facts showing that there is a genuine issue for trial”[25].  The non-moving party’s evidence will not suffice if it is comprised merely of “conclusory allegations, improbable inferences, and unsupported speculation[26].” 

3. Issue Preclusion and Res Judicata.

The legal principles of estoppel and res judicata preclude re-litigation of the same claims filed by the same parties in a different or new proceeding, including in hearing requests filed at the BSEA[27].  These doctrines “prevent plaintiffs from splitting their claims by providing a strong incentive for them to plead all factually related allegations and attendant legal theories for recovery the first time they bring suit”[28].  This “relieve[s] parties of the cost and vexation of multiple lawsuits, conserve[s] judicial resources, and, by preventing inconsistent decisions, encourage[s] reliance on adjudication”[29].

Res judicata precludes a party from relitigating issues that were or could have been raised in an action for which a final judgment on the merits has issued[30].  The 3 elements of this doctrine are: (1) a final judgment on the merits in an earlier suit, (2) “sufficient identicality” between the causes of action asserted in the earlier and later suits, and (3) “sufficient identicality” between the parties in the two suits[31].  Similarly, issue preclusion (also known as collateral estoppel) “‘means simply that when a[n] issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit’”[32].

Massachusetts applies a “transactional approach” to determining the identicality element of claims brought in a subsequent proceeding[33].  Claims that derive from a “common nucleus of operative facts” are, therefore, unable to be brought in a subsequently filed hearing request, if they could have been brought in the earlier action[34].  However, parties who seek further review of issues precluded by a prior BSEA matter, even when they allege the existence of information not considered in that prior matter are not without recourse. Under the IDEA, new evidence can be introduced in civil action appeals of due process hearing decisions.  Specifically, 20 USC 1415 (i)(2)(c) provides that “[i]n any action brought under this paragraph, the court—(i) shall receive the records of the administrative proceedings; (ii) shall hear additional evidence at the request of a party; and (iii) basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate” (emphasis added)[35].  As such, only new claims not dispositively addressed previously by the BSEA can be litigated in subsequently filed hearing requests between the same or “sufficiently identical” parties[36].

4. Jurisdiction of BSEA and the Notice Pleading Standard.

The BSEA is not an agency of general jurisdiction, it is limited to considering “only those claims for which enabling statutes and regulations expressly grant authority”[37].  20 USC §1415(b)(6) grants parties the right to file timely complaints (with the state educational agency designated to hear same) “with respect to any matter relating to the identification, evaluation or educational placement of the child, or the provision of a free appropriate public education to such child”[38].  Similarly, M.G.L. c. 71B §2A, establishing the BSEA, authorizes it to resolve special education disputes concerning,

“…(i) any matter relating to the identification, evaluation, education program or educational placement of a child with a disability or the provision of a [FAPE] to the child arising under this chapter and regulations promulgated hereunder or under the [IDEA], 20 U.S.C. [§]1400 et seq., and its regulations; or (ii) a student’s rights under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. [§]794, and its regulations”[39].

Consistent with the FRCP, hearing requests filed under the IDEA need only consist of “notice pleadings”, i.e., sufficient so as to provide fair notice to the opposing party of the nature of the dispute[40].  However, “[w]hile …. detailed factual allegations” are not necessary, “… a [Parent and Student’s] obligation to provide the ‘grounds’ of [their] ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do”[41].

5. Prior Accepted Expired IEPs.

Not all matters involving the provision of a FAPE to a student can be reviewed by the BSEA, however.  Specifically, claims seeking review of the appropriateness of an accepted IEP, that has since expired and was never rejected during its term, cannot be pursued through a due process hearing.  As the BSEA has repeatedly explained, “[b]oth courts and BSEA have repeatedly held that Hearing Officers are precluded from re-opening/re-visiting accepted IEPs that have expired where guardians have participated in the development of the IEP; guardians have received notice of their options for rejection of an IEP and proceeding to a due process hearing; parents have chosen to accept the IEP; and guardians have never rejected the IEP during its term”[42].  “The purpose of this rule is plain; deciding upon which goals and methods to include in any student’s IEP is not an exact science, and allowing parents to second guess IEP decisions after it has expired would only undermine the process of providing students with the educational services they need”[43].  The only claim available to parents in such situations is a “claim alleging a failure to implement or noncompliance with an appropriately developed and formulated IEP…”[44]. 

6. Entitlement to Publicly Funded IEEs.

Under federal law a parent is entitled to an IEE at no cost if she disagrees with the evaluation obtained in the first instance by the school district, unless the school shows at a due process hearing that the disputed evaluation was “comprehensive and appropriate”[45].  In Massachusetts, IEEs are governed by 603 CMR 28.04(5), which provides that “upon receipt of evaluation results, if a parent disagrees with an initial evaluation or reevaluation completed by the school district, then the parent may request an independent education evaluation”.  As these legal requirements indicate, districts have the right to complete their own evaluations, inclusive of timely sharing the results with parents, before the right to a publicly funded IEE arises[46].  However, nothing prohibits parents from obtaining an IEE at private expense at any time[47].  

7. Educational Decision-Making Authority.

As noted previously, the BSEA has jurisdiction over requests for hearing filed by a “parent or school district” on specific matters involving students with disabilities[48]. 

Massachusetts regulations recognize that the term “Parent” refers to a child’s mother or father but further define the term “for purposes of special educational decision-making,” in pertinent part, as “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”[49].  Under 34 CFR 300.30(b)(1) and (2) a biological or adoptive parent is presumed to be the “parent” unless “the biological or adoptive parent does not have the legal authority to make educational decisions for the child” and “if a judicial decree or order identifies a specific person … to act as the ‘parent’ of a child or to make educational decisions on behalf of a child, then such person or persons shall be determined to be the “parent” for purposes of this section”.   Allowing a person with no legal authority to act on the child’s behalf to initiate due process proceedings is inconsistent with both the IDEA’s statutory structure and the due process protections afforded to students, schools, and families[50].  However the BSEA has consistently held that a parent who “file[s] a due process complaint at a time that she ha[s] custody of her child, seeking relief stemming from events that occurred while she had custody of her child, does not lose standing to pursue that complaint on his behalf by virtue of the fact that she lost custody of him subsequent to the filing of her claim”[51].

Guided by this legal authority, I address the Motions.

APPLICATION OF LEGAL STANDARDS

After reviewing the Hearing Request in the light most favorable to Parent, as I am required to do, I find that most of the claims there asserted are either precluded by res judicata or issue preclusion, are outside the jurisdiction of the BSEA or are premature and thus must be dismissed with prejudice.  I further find that some of the remaining claims fail to provide the necessary specificity required to meet the threshold of “notice pleadings” even viewing them deferentially in light of Parent’s pro se status, and thus these claims are dismissed without prejudice.  Finally, I conclude that limited claims do not warrant dismissal at this stage of the proceedings as they are within the BSEA’s jurisdiction, not otherwise precluded, pled with sufficient specificity and involve a dispute over facts material to the issue.  Thus, these limited claims shall proceed to the scheduled hearing.  My reasoning follows, referring to the claims by letter and number as they are set forth above in the “Relevant Procedural History and Summary of Hearing Request Claims” portion of this Ruling.

  1. The Claims in Section A (Arising Wholly Prior to June 2024)

All of the Claims in Section A (Numbers 1-6) contain specific dates that are prior to June 2024 and therefore are precluded from reconsideration in the instant matter as all three elements of res judicata exist for these claims[52].  First, a full and final judgement on the merits was made by virtue of the Decision in the Prior BSEA Matter[53].  Second, sufficient “identicality” exists between the current claims and those made in the Prior BSEA Matter.  To the extent they are not directly repetitive they derive from the same “common nucleus of operative facts” as those adjudicated in the Prior BSEA Matter [54].  Third, there is identicality of parties for both matters.  Thus, Parent cannot raise these claims in a new Hearing Request before the BSEA.  Doing so now would require review of information for which dispositive findings of fact and conclusions have already been made by the BSEA.  To the extent Parent disagrees with the findings and conclusions of the Prior BSEA Matter, her only proper recourse would have been to pursue these claims via an appeal to a federal or state court[55].  Therefore, applying the legal principles of res judicata and issue preclusion to this matter, all claims in Section A, as they were previously dispositively adjudicated in the Prior BSEA Matter (and Parent could have appealed that prior Decision to federal or state court), are precluded here and must be dismissed.  As such the District’s Motions with respect to all claims in Section A is ALLOWED with prejudice. 

II. The Claims in Section B (Undated Claims)

All Claims in Section B fail to specify any date on which they allegedly occurred[56].  They also appear to derive from a “common nucleus of operative facts” raised in the Prior BSEA Matter[57].  Given my conclusions, supra, as to the preclusive effect of the Prior BSEA Matter on claims made prior to June 2024, failure to specify a date for these claims does not rehabilitate them from dismissal on grounds of res judicata or issue preclusion.  While it is possible that these undated claims pertain to events occurring after June 2024, I cannot reasonably infer this even when viewing the Hearing Request as a whole, in the light most favorable to Parent.  As the majority of the Hearing Request involves allegations that occurred wholly before June 2024, it would not be reasonable to conclude that all undated claims involve allegations after June 2024[58].  At this juncture, for any claim in the Hearing Request to avoid dismissal on grounds of res judicata or issue preclusion, it must clearly identify date(s) between July 1, 2024 (when the timeframe of the Prior BSEA Matter concluded) through April 14, 2025 (when Parent filed the Hearing Request).  However, considering Parent’s pro se status, the District’s Motions with respect to all undated claims in Section B (other than as provided below for Claim B(2) and certain portions of Claim B(4), for which independent bases exist to support dismissal with prejudice), is hereby ALLOWED but without prejudice. 

Claim B(2) involves the same tutoring offers made in the N-1 Form dated December 28, 2023, addressed in Finding of Fact 33 in the Decision in the Prior BSEA Matter.  Thus, although Claim B(2) is undated, as findings and conclusions were made with regard to all allegations contained therein in the Prior BSEA Matter, the doctrines of res judicata and issue preclusion apply to preclude it.  As such, it is DISMISSED with prejudice. 

Claim B(4) makes several allegations pertaining to alleged “retaliation”, “misconduct”, “misrepresentations”, etc.  Some of these allegations involve issues outside the BSEA’s jurisdiction, however.  The allegations that the District “contact[ed] Child Protective Services”, “provid[ed] false information in court”, “retaliate[ed] against the parent”, and “us[ed] DCF as a weapon against parent” do not pertain to the “identification, evaluation, education program or educational placement of a child with a disability or the provision of a [FAPE] to the child”.  They are therefore not within the jurisdiction of the BSEA and thus these allegations of Claim B(4) are DISMISSED with prejudice[59]. 

Other allegations in Claim B(4), are insufficient as pled involving only “labels and conclusions”, “legal conclusions couched as … fact” or ‘[t]hreadbare recitals of the elements of a cause of action’”.  They do not include the type of specificity, date, or contextual information needed to survive a motion to dismiss or a motion for summary judgment[60], even viewing them in the light most favorable to Parent[61] (i.e., by assuming that, despite being undated, they occurred wholly after June 2024).  Specifically, these are allegations that the District “engaged in retaliation”, made “misrepresentations”, engaged in “violations of confidentiality” or “discrimination”, “intentionally misrepresent[ed] legal obligations”, made “legal threats”, and practiced “procedural manipulation and intimidation tactics to force compliance”.  Thus, these allegations of Claim B(4) are also DISMISSED with prejudice.

Still other allegations in Claim B(4), to wit: “procedural misconduct”, “denial of parental participation”, and “refusal to provide translation” (while potentially within the BSEA’s jurisdiction if they occurred wholly after June 2024 and were pled with greater specificity), are addressed in other Claims in the Hearing Request.  Thus, to ensure administrative efficiency, they are also DISMISSED with prejudice but with respect to Claim B(4), only. 

Finally, the allegation in Claim B(4) that the District “falsely claim[ed] Fusion Academy was not an appropriate placement” is DISMISSED with prejudice on grounds of res judicata and collateral estoppel, for the reasons previously stated, and as this has already been addressed by both the Prior BSEA Matter and the Superior Court Matter.  As such, the only allegations of Claim B(4) that are DISMISSED without prejudice, are the allegations that the District “altered dates on documents” and “refus[ed to] provide transportation [and] services”.

  1. The Claims in Section C (Claims Dated In Part or In Whole after June 2024)

First, I address the District’s challenge to Parent’s standing to bring this matter in light of the Care and Protection Matter awarding her conditional custody. 

Conditional custody was initially ordered on April 10, 2025 and further clarified on April 17, 2025.  Parent’s Hearing Request was filed on April 14, 2025, between these dates, which date also controls for determining the limits of the timeframe to be considered in this matter.  While, in light of the conditional custody Order, Parent clearly does not have standing to raise special education disputes that occurred after April 17, 2025[62], she does have standing to pursue claims for periods of time when her custody was not so limited[63].  Thus, I decline to dismiss this matter for lack of standing. 

Turning now to the specific claims in Section C, Claim C(1) challenges Student’s lack of a proper school placement and alleges that Student has not been provided with a FAPE “since September 2023”.  While all allegations prior to July 1, 2024, are precluded for the reasons previously explained, Parent can proceed to hearing on the allegations of Claim C(1) that pertain to the timeframe between July 1, 2024 and April 14, 2025.  Issues about whether Student has had a proper school placement or been provided with a FAPE between July 1, 2024 and April 14, 2025 are within the BSEA’s jurisdiction, and this claim as presented contains sufficient specificity to meet the “notice pleading” threshold, particularly considering Parent’s pro se status. 

The District seeks summary judgment as to all allegations of Claim C(1) pertaining to the timeframe after June 2024 based on its argument that “Parent’s own actions have impeded the District’s ability” to properly place Student and provide her with a FAPE.  To support this argument, the Motions include several statements of facts (numbered 19 to 34[64]) with supporting exhibits (Exhibits I through T) that the District contends evidences indisputably that since June 2024,

“Parent has engaged in the same conduct that Hearing Officer Berman determined had impeded Braintree’s good faith effort to provide Student with a FAPE – so much so that, on April 10, 2024, conditions were placed on Parent’s custody of Student and the Corut appointed an educational GAL to ensure development of a new IEP for Student following review of her recent evaluations; to oversee the referral process to identify a placement for Student consistent with this IEP; and, to ensure that Student commences such placement” (emphasis in original). 

Summary judgment is appropriate only when there is no genuine dispute as to a material fact related to an issue raised for adjudication[65].  Although Parent fails to explicitly address the District’s arguments in her July 11, 2025 Pleading, Parent’s allegations in Claim C(1) of the Hearing Request,in and of themselves, evidence her dispute with the District’s argument in its Motions.  While the District’s desire to avoid another hearing in this matter is understandable, it would be inappropriate to rely on conclusions in the Prior BSEA Matter that were made after a hearing on the merits to support dismissal of similar claims occurring during a subsequent time period in the instant matter, without a hearing on the merits.  As such, the District’s Motions as to Claim C(1) is ALLOWED in part, with prejudice, and DENIED, in part.  Specifically, allegations that Student was without a proper school placement or generally denied a FAPE between July 1, 2024, and April 14, 2025, may proceed to hearing as scheduled.

Claim C(2), despite specifying that its allegations[66] occurred in December 2024, does not relate to the “identification, evaluation, education program or educational placement of a child with a disability or the provision of a [FAPE] to the child”.  Thus, the BSEA has no jurisdiction to consider this Claim and the District’s Motions with regard to Claim C(2) is ALLOWED with prejudice[67].

Finally, Claim C(3), involves allegations noted to have occurred “between January 2025 and March 2025” and addresses issues within the jurisdiction of the BSEA (namely that the district improperly cancelled, purposely delayed and rescheduled evaluations without providing proper notice on six separate occasions).  Thus, as Claim C(3) also provides the appropriate specificity needed to meet the “notice pleadings” standard, the District’s Motions with regard to Claim C(3) is DENIED.  I note however, that to the extent Parent seeks to produce evidence pertaining to “reporting to DCF that it is mother’s fault” “loss of medical providers for both the child and the mother” or “miss leaded (sic) the court and DCF”, such evidence will be excluded as outside the BSEA’s jurisdiction and not relevant to the FAPE-based aspects of Claim C(3). 

  1. Requested Relief

The Motions request to dismiss the requested relief contained in the Hearing Request (are allowed in part, both with and without prejudice, and denied, in part.  Specifically, dismissal of request 1 (relating to immediate reinstatement of Student at Fusion as her “stay put” placement) is ALLOWED with prejudice.  Not only is this issue precluded through June 2024 for the reasons of res judicata and issue preclusion, as address supra, but no “stay put” rights to Fusion existed at the time Parent filed her Hearing Request.  In June 2024, Student’s placement was a “separate day school – private” as per the accepted 24-25 IEP.  This IEP, with its corresponding placement, was never rejected during its term and had expired by the time Parent filed her Hearing Request.  The 24-25 IEP cannot be deemed to have been constructively rejected either, as at no time during the term of the 24-25 IEP did Parent unilaterally place Student at Fusion or seek due process dispute resolution[68].  Thus, the appropriateness of the 24-25 IEP cannot be disputed at this time, and the placement it calls for (which is not Fusion) is “stay put” for the pendency of this dispute[69].

Dismissal of request 2 seeking legal fees is also ALLOWED with prejudice as outside the BSEA’s jurisdiction.  The BSEA does not have jurisdiction to award legal fees[70].  Moreover, in the instant matter, Parent is currently pro se, so unless she hires legal counsel prior to the hearing, the IDEA’s legal fee reimbursement process is unavailable to her.  Parent’s request actually seeks to have the District ordered to front legal fees to support her at the hearing.  Nowhere in the IDEA does such an obligation exist, nor would such relief ever be appropriate without an adjudication of liability against the District before any obligation for legal fee reimbursement arises.

Dismissal of request 3 seeking compensatory education services is ALLOWED in part, with prejudice, and DENIED, in part, for the reasons previously explained with regard to Claim C(1).  Specifically, at the hearing, Parent’s request for compensatory educational services between July 1, 2024 and April 14, 2025, only, can proceed.

Dismissal of request 4 seeking “development of an appropriate IEP” is ALLOWED without prejudice given Parent’s current conditional custodial status by virtue of the Care and Protection Matter. 

Dismissal of request 5 seeking an “[IEE] at public expense” is ALLOWED with prejudice as premature.  Parent does not identify any District evaluation that had occurred prior to filing the Hearing Request (for which she has received the results) on which her request for an IEE is premised.  According to the Motions, after extensive attempts to evaluate Student, the District finally evaluated her on March 10, 2025, April 2, 2025, and April 3, 2025[71], and a Team meeting to review these evaluations was tentatively scheduled for May 13, 2025.  The information in the record regarding facts material to the request for an IEE reveal that on April 14, 2025, Parent was not in receipt of the results of a district-conducted evaluation that would trigger her right to seek a publicly funded IEE, and, therefore, her request for an IEE was not properly made[72]. 

Dismissal of request 6 seeking “translation of all educational documents and meetings” is ALLOWED without prejudice.  Consistent with my analysis pertaining to the undated, non-specific, general claims in Section B dismissed without prejudice, this requested relief lacks sufficient context and specificity and fails to identify date(s) between July 1, 2024, and April 14, 2025, when Parent allegedly received untranslated educational documents or participated in a meeting without interpreter support[73].

Finally, dismissal of requests 7, 8 and 9 are ALLOWED with prejudice as outside the BSEA’s jurisdiction.  Request 7 seeks “federal oversight” and a “court injunction” both of which are outside the parameters of BSESA jurisdiction.  Request 8 seeks unspecified “accountability measures” however, accountability is not something the BSEA is charged with (rather, that falls under the purview of DESE and PRS).  Finally, Request 9 seeks an order that the District “disclose the amount of funds allocated towards legal fees and other expenses incurred in the fight against [Student’s] right to attend school” which is not within the realm of available relief that could be ordered by the BSEA. 

ORDER

The Motions are ALLOWED in substantial part,and DENIED, in limited part.  Only the following issues remain for hearing in this matter:

  1. Whether Student was denied a FAPE between July 1, 2024, and April 14, 2025;
  2. Whether, on six occasions between January 2025 and March 2025, the District cancelled, purposely delayed and rescheduled evaluations without providing adequate notice to Parent; and
  3. If the answer to (a) or (b) is yes, what, if any, compensatory educational services are owed for the timeframe between July 1, 2024, and April 14, 2025. 

All other claims are hereby DISMISSED with and without prejudice as designated, supra. 

By the Hearing Officer,

Marguerite M. Mitchell

/s/ Marguerite M. Mitchell

Date: August 20, 2025

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

EFFECT OF FINAL BSEA ACTIONS AND RIGHTS OF APPEAL

Effect of BSEA Decision, Dismissal with Prejudice and Allowance of Motion for Summary Judgment

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. Similarly, a Ruling Dismissing a Matter with Prejudice and a Ruling Allowing a Motion for Summary Judgment are final agency actions. If a ruling orders Dismissal with Prejudice of some, but not all claims in the hearing request, or if a ruling orders Summary Judgment with respect to some but not all claims, the ruling of Dismissal with Prejudice or Summary Judgment is final with respect to those claims only. 

Accordingly, the Bureau cannot permit motions to reconsider or to re-open either a Bureau decision or the Rulings set forth above once they have issued. They are final subject only to judicial (court) 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.  This means that the decision must be implemented immediately even if the other party files an appeal in court, and implementation cannot be delayed while the appeal is being decided.  Rather, a party seeking to stay—that is, delay implementation of– the decision of the Bureau must request and 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,” while a judicial appeal of the Bureau decision is pending, 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 while judicial proceedings are pending must ask the court having jurisdiction over the appeal to grant a preliminary injunction ordering such a change in placement. 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 of Special Education Appeals 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 Elementary and Secondary Education or other office for appropriate enforcement action. 603 CMR 28.08(6)(b).

Rights of Appeal

Any party aggrieved by a final agency action by the Bureau of Special Education Appeals may file a complaint for review in the state superior court of competent jurisdiction or in the District Court of the United States for Massachusetts. 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]   Neither Party requested a hearing, and as neither testimony nor oral argument would advance my understanding of the issues involved, this Ruling is issued without a hearing pursuant to Hearing Rule VII(D). 

[2]   Of note, every allegation contained in Section II, “Timeline of Events & District Violations”, involves matters that are identified as having occurred between February 2023 and May 2024. 

[3]   This is a summary of the claims as I could discern them from the Hearing Request, much of which was repetitive or not involving actual allegations but rather witness lists, questions, legal strategies and caselaw summaries.  Further, while the claims are mostly ordered as presented, repetitive claims were combined, although as relevant I set forth the alternative presentation of certain claims. 

[4]   This claim was also phrased as “… [r]equesting the parent to sign an agreement giving up her daughter’s IEP in exchange for allowing her to remain at the school that the district had offered as a placement. The district then illegally terminated the parent’s rights by using blackmail to coerce her into signing a document that was also illegal. The parent refused to sign the document”.

[5]   This claim was also phrased as “[d]eliberate obstruction of the placement process, leading to [Student] being out of school since September 2023, 2024, [and] 2025”

[6]   This claim is also phrased as “The parent was repeatedly coerced into driving their child to evaluations that were ultimately canceled by the district on six separate occasions. This manipulation involved the threat of withholding necessary evaluations, despite the district being aware that failure to complete them could result in the child being removed from their home. This action was taken in direct contradiction to the information provided to [DCF] by the district, creating a misleading and potentially harmful situation for the child and their family”.

[7]   This relief request is also phrased as “PBS (sic) needs to cover all legal costs for the parents until the child is back in school. The parents not only have to stay home with the child and are unable to work, but they are also fighting a legal battle with limited knowledge of the language and procedures. It is unfair that the district is using public funds while the parents are left to bear the burden of paying for their child, who is stuck at home for two years, and legal fees. It is essential that parents have the same access to legal assistance as the district does. It is crucial for the parents to receive the support they need in order to ensure that their child’s education is not compromised any longer. PBS (sic) must take responsibility for covering all legal costs until the child is back in school to provide equal access to legal assistance for all parties involved”.

[8]   For the specific procedural history associated with this postponement request and approval, refer to the Postponement Ruling of May 8, 2025, and the Supplemental Ruling of May 9, 2025.

[9]   Further, prior to the Call, also on July 11, 2025, Parent had filed a pleading entitled “Request for Correction of Document Dates, Compliance with Translation Requirements, Extension of Hearing Preparation Time, Subpoena for Missing Records and Concerns about Document Production”.  By Ruling issued in English on July 22, 2025, and sent to the Parties in both XXXX and English on July 24, 2025, these requests were denied.

[10]   Footnote 1 of this Postponement Ruling also noted I deemed the July 11, 2025 Pleading to be Parent’s response to the Motions.

[11]   The Motions,Exhibit A attaches the 24-25 IEP including Parent’s signature partially rejecting this IEP with the following notation:  “I reject the District’s written in wording on the ‘Placement Page’ that states, ‘THERAPEUTIC DAY SCHOOL’.  This written in description by the district is outside the scope of PL1 page and no one has defined the word ‘Therapeutic’ and is not listed as a requirement of description.  We wish to honor the language that states a Substantial (sic) Separate Day School, without the specific mention of ‘Therapeutic Day’”.  Parent also signed and fully consented to the placement (PL-1) page.

[12]   According to the Motions,Exhibit U, an interpreter was both confirmed and funded for a meeting on February 24, 2025.  Exhibit U also indicates that at some point in time the 25-26 IEP was translated to XXXX. 

[13]   The Conditional Custody Order was not provided.  This information is taken from an April 17, 2025 Order from the Care and Protection Matter entitled “Court’s Order of Clarification Regarding the Conditional Custody Order to Mother, Paragraph 10” (Clarification Order).

[14]   As these rules/regulations are analogous to Rule 12(b)(6) of the Federal and Massachusetts Rules of Civil Procedure (FRCP and MRCP, respectively), hearing officers are generally guided by federal court decisions in deciding such motions.

[15]   Iannocchino v. Ford Motor Co., 451 Mass. 623, 636 (2008) quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007).

[16]   Blank v. Chelmsford Ob/Gyn, P.C., 420 Mass. 404, 407 (1995).

[17]   Iannocchino 451 Mass. at 636 (quoting Bell Atl. Corp., 550 U.S. at 555); see Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 12 (1st Cir. 2011).

[18]   Haines v. Kerner, 404 U.S. 519, 520 (1972) (allegations contained in a hearing request are to be held to “less stringent standards than formal pleadings drafted by lawyers”); Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997) (“The policy behind affording pro se plaintiffs liberal interpretation [of their hearing request] is that if they present sufficient facts [to state a claim], the court may intuit the correct cause of action, even if it was imperfectly pled”); In Re: Springfield Pub. Schs., BSEA No. 2203555, 22 MSER 109, (Berman, 2022); see In Re: Easthampton Pub. Sch., BSEA No. 2203513, 28 MSER 35, (Kantor Nir, 2022).

[19]   Ahmed, 118 F.3d at 890.

[20]   Lampkin-Asam v. Volusia Cnty. Sch. Bd., 261 F.App’x 274, 276–77 (11th Cir. 2008) quoting Hepperle v. Johnston, 544 F.2d 201, 202 (5th Cir.1976).

[21]   See Nollet v. Justices of the Trial Court of Mass., 83 F.Supp.2d 204, 208 (D. Mass. 2000), aff’d, 248 F.3d 1127 (1st Cir. 2000) holding that “[w]hen ruling on a 12(b)(6) motion to dismiss for failure to state a claim, the court may consider only the facts alleged in the pleadings, documents attached as exhibits or incorporated by reference in the complaint, and matters of which judicial notice may be taken.”; In Re: Ludlow Pub. Schs., BSEA No. 1603808, 21 MSER 276 (Figueroa, 2015). 

[22]   801 CMR 1.01(7)(h).  As with motions to dismiss, hearing officers are guided by Rule 56 of the FRCP and MRCP in deciding motions for summary judgment which provide that summary judgment may be granted only if the “pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there are no genuine issues as to any material fact and that the moving party is entitled to judgment as a matter of law”. 

[23]   French v. Merrill, 15 F.4th 116, 123 (1st Cir. 2021); see Maldanado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 581 (1st Cir. 1994).

[24]   Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 252 (1986) (“At the summary judgment stage the [hearing officer’s] function is not [her]self to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial”).

[25]   Id. at 250 (quoting FRCP 56(e)).  The adverse party must show that there is “sufficient evidence” that could be found in its favor that would allow the fact finder to decide for it at a hearing on the merits.  Mack v. Great Atl. & Pac. Tea Co., 871 F.2d 179, 181 (1st Cir. 1989) quoting Anderson, 477 US at 249-50 (to be “sufficient”, the evidence presented by the non-moving party “must have substance in the sense that it [demonstrates] differing versions of the truth which a factfinder must resolve at an ensuing trial”).

[26]   Anderson, 477 U.S. at 252.

[27]   Kobrin v. Board of Registration in Medicine,444 Mass. 837, 843-44 (2005), concluding that a “final order of an administrative agency in an adjudicatory proceeding … precludes re-litigation of the same issues between the same parties, just as would a final judgment of a court of competent jurisdiction” citing Tuper v. North Adams Ambulance Serv., Inc., 428 Mass. 132, 135 (1998) quoting Stowe v. Bologna, 415 Mass. 20, 22 (1993); In Re: Taunton Pub. Schs., BSEA No. 16-01127, 21 MSER 244 (Byrne, 2015) (“[f]or the purpose of application of issue preclusion doctrines, consideration and resolution by an administrative adjudicatory agency is equivalent to a court judgment”); In Re: DESE and Xili, BSEA # 18-02999, 24 MSER 14 (Byrne 2018) (“[t]he common law doctrine of estoppel – in this case res judicata and collateral estoppel – prevents BSEA consideration of the Parent’s residency-related claims as a Court in this jurisdiction considered and disposed of the same claims, arising from the same factual allegations against the same party. That ruling is binding on the BSEA”); In Re: XiLi and The Gifford Sch., BSEA #18-03736, 24 MSER 18 (Byrne 2018) (where “[t]he Parent now seeks to assert the same facts and the same claims for the same time period against the same party in interest/privy, [t]raditional doctrines of estoppel preclude BSEA consideration of those previously determined facts and claims”) (citation omitted).

[28]   Apparel Art Int’l, Inc. v. Amertex Enterprises Ltd., 48 F.3d 576, 583 (1st Cir. 1995).

[29]   Apparel Art Int’l, Inc., 48 F.3d at 583 quoting Allen v. McCurry, 449 U.S. 90, 94 (1980).

[30]   Allen, 449 U.S. at 94; In re Sonus Networks, Inc, S’holder Derivative Litig., 499 F.3d 47, 56-57 (1st Cir. 2007); Kobrin, 444 Mass. at 843-44; In Re: Student v. Marshfield Public Schools, BSEA # 2209242, 28 MSER 93 (Kantor Nir, 2022).

[31]   Breneman v. U.S. ex rel. F.A.A., 381 F.3d 33, 38 (1st Cir. 2004); In Re: Marshfield PS, (Kantor Nir, 2022); see Gonzalez-Pina v. Rodriguez, 407 F.3d 425, 429 (1st Cir. 2005).

[32]   Gonzalez-Pina, 407 F.3d at 430 quoting Jackson v. Coalter, 337 F.3d 74, 85 (1st Cir.2003) quoting Ashe v. Swenson, 397 U.S. 436, 443 (1970).

[33]   Breneman, 381 F.3d at 38.

[34]   Breneman, 381 F.3d at 38; see Apparel Art Int’l, Inc., 48 F.3d at 583-84, holding that “although a set of facts may give rise to multiple counts based on different legal theories, if the facts form a common nucleus that is identifiable as a transaction or series of related transactions, then those facts represent one cause of action”.

[35]   Doe v. Newton Pub. Sch., 48 F.4th 42, 48 (1st Cir. 2022), “If, following such a hearing, the BSEA renders a decision adverse to either the parents or the school district, then the aggrieved party may ‘bring a civil action challenging the outcome … in either state or federal court.’ … The court in which such an action is brought may consider not only the ‘records of the administrative proceedings’ but also ‘additional evidence at the request of a party.’” (citations omitted).

[36]   Breneman, 381 F.3d at 38.

[37]   In Re:  Springfield Pub. Schs., BSEA No. 2203555, 28 MSER 111 (Berman, 2022) citing Globe Newspaper Co. v. Beacon Hill Architectural Comm., 421 Mass. 570, 586 (1996) (“Any judicial review of agency action embodies the principle that an agency has no inherent authority beyond its enabling act and therefore it may do nothing that contradicts such legislation”); see 20 U.S.C. §1400 et. seq; M.G.L. 71B; 29 U.S.C. §794; In Re: Student & Quincy Pub. Sch. and Dept. of Elementary and Secondary Education, BSEA No. 2408249, 30 MSER 176 (Mitchell, 2024); In Re: Holyoke Pub. Sch. and Jay, BSEA No. 1800619, 24 MSER 20 (Oliver, 2018).

[38]   See 34 CFR 300.507(a)(1).

[39]   See 603 CMR 28.08(3)(a) (providing for the BSEA to hear “… any matter concerning the eligibility, evaluation, placement, IEP, provision of special education in accordance with state and federal law or the procedural protections of state and federal law for students with disabilities”)

[40]   Bell Atl. Corp., 550 U.S. at 555; see FRCP 8(a), “Claim for Relief. A pleading that states a claim for relief must contain: … (2)a short and plain statement of the claim showing that the pleader is entitled to relief….”.

[41]   Id., citing Papasan v. Allain, 478 U.S. 265, 286, (1986).

[42]   In Re: Fairhaven Pub. Schs. and Alex, BSEA No. 05-5469, 12 MSER 93 (Oliver, 2006); see Amann v. Stow Sch. System, 982 F.2d 644, 651, Ftnt 4 (1st Cir. 1992).  Explicit rejection of an IEP is not required, however, and constructive rejection has been found to occur in situations not at issue in this matter, such as when parents notify a district of their intent to unilaterally place their child out of the district and to hold the district financially responsible for such placement followed by the subsequent enrollment of the student at the alternative school (In Re: Jed & Westport Pub. Schs., BSEA No. 13-02922, 19 MSER 106 (Oliver, 2013)) or when a parent files a hearing request during an IEP’s term (In Re: Natick and Framingham Schs., BSEA No. 1707648, 23 MSER 199 (Berman, 2017)).

[43]   Doe ex rel. Doe v. Hampden-Wilbraham Reg’l Sch. Dist., 715 F.Supp.2d 185, 194 -95 (D.Mass. 2010).

[44]   Ross v. Framingham Sch. Comm., 44 F.Supp.2d 104, 116 (D.Mass. 1999), aff’d, 229 F.3d 1133 (1st Cir. 2000); see Doe, 715 F.Supp.2d at 195. 

[45]   20 U.S.C. 1415(b)(1) and (d)(2)(A); see 34 CFR 300.502.

[46]   603 CMR 28.04(5); see In Re: Billerica Pub. Schs. and Ozal, BSEA No. 19-11391, 25 MSER 136 (Byrne, 2019) citing In Re:  Shrewsbury Publ. Schs. and Yandel, BSEA No. 1508106, 21 MSER 247 (Byrne, 2015)

[47]   See 603 CMR 28.04(5)(b).

[48]   603 CMR 28.08(3)(a).

[49]   603 CMR 28.02(15).

[50]   See In Re: Maurice and Taunton Pub Schs., BSEA No. 1600002, 22 MSER 113 (Reichbach, 2015) (dismissing without prejudice a hearing request for lack of standing as it was filed by a parent at a time when, and involving issues over which, he had no authority to make educational decisions for the student).

[51]   In Re: Framingham Pub. Schs. and Quin, BSEA No. 1605247, 22 MSER 81 (Reichbach 2016); In Re: Taunton, BSEA No. 16-01127 (Byrne, 2015) (concluding that although “Parent does not have standing to assert claims of IEP violations for the time period during which he did not have educational decision making authority, Parent does have standing to raise issues with respect to the IEP from the date on which he regained custody and educational making authority (July 15, 2015) forward”); see In Re: Wellesley Pub. Schs. and Gracie, BSEA No. 1809988, 24 MSER 206 (Reichbach, 2018).

[52]   Breneman, 381 F.3d at 38; In Re: Marshfield PS, (Kantor Nir, 2022); see Gonzalez-Pina, 407 F.3d at 429.

[53]   In the Motions the District asserts that the Superior Court Matter serves to preclude the claims raised by Parent as well.  Although this may also be true, it is unnecessary to analyze the Superior Court Matter’s potential preclusive effect on these claims given that the Decision in the Prior BSEA Matter precludes them.

[54]   Breneman, 381 F.3d at 38; see Apparel Art Int’l, Inc., 48 F.3d at 583-84.

[55]   20 USC 1415 (i)(2)(c).

[56]   Further, despite the “notice pleadings” requirement, and even viewing these claims with deference to Parent’s pro se status, they all also lack the sufficient specificity to survive dismissal, as presented. 

[57]   Breneman, 381 F.3d at 38; see Apparel Art Int’l, Inc., 48 F.3d at 583-84.

[58]   Further, as the July 11, 2025 Pleading reflects, Parent’s general litigation style is to reassert arguments, allegations and claims, particularly when she has not previously received a Ruling favorable to her.  As such, a more reasonable inference of the claims in the Hearing Request is that unless the claim specifies a date past June 2024, it pertains wholly to issues Parent had prior to June 2024.

[59]   M.G.L. c. 71B §2A; see 20 USC §1415(b)(6); 34 CFR 300.507(a)(1); 603 CMR 28.08(3)(a).

[60]   Bell Atl. Corp., 550 U.S. at 555 citing Papasan, 478 U.S. at 286.

[61]   Ocasio-Hernandez, 640 F.3d at 12, citing Ashcroft, 556 U.S. at 678-79 (quoting Bell Atl. Corp., 550 U.S. at 555).

[62]   Nowhere does the April 17, 2025 Order of Clarification of the Norfolk County Juvenile Court indicate that it applies retroactively to its April 10, 2025 conditional custody Order (which was not produced) or is otherwise issued nunc pro tunc, thus based on the information presented in the record, it does not appear that Parent was explicitly prohibited from filing the underlying Hearing Request on the date she so filed it.  To the extent that Parent’s actions in so filing this Hearing Request appear to be violative of the Norfolk County Juvenile Court’s orders, that may be pursued before the Norfolk County Juvenile Court. 

[63]   See In Re: Maurice, BSEA No. 1600002 (Reichbach, 2015); compare In Re: Gracie, BSEA No. 1809988, (Reichbach, 2018); In Re: Quin, BSEA No. 1605247 (Reichbach 2016); In Re: Taunton, BSEA No. 16-01127 (Byrne, 2015).

[64]   Except Statement of Fact 22 that summarizes the Decision issued in the Prior BSEA Matter.

[65]   801 CMR 1.01(7)(h); See FRCP and MRCP 56; French, 15 F.4th at 123; Maldanado-Denis, 23 F.3d at 581.

[66]   These allegations consist of the District improperly threatening involvement of DCF, repeatedly filing false 51A reports and calling the police when the child was in distress “leading to the child being taken to the hospital by ambulance from school”

[67]   M.G.L. c. 71B §2A; see 20 USC §1415(b)(6); 34 CFR 300.507(a)(1); 603 CMR 28.08(3)(a).

[68]   See In Re: Natick and Framingham Schs., BSEA No. 1707648, (Berman, 2017; In Re: Jed (Oliver, 2013). 

[69]   Under the federal and state special education laws, when a parent or guardian rejects any or all of the provisions in an IEP (or fails to respond to a proposed IEP), “stay put” rights apply and other than with regard to an initial IEP, the last accepted IEP and/or IEP provisions must continue to be implemented unless and until the newly proposed IEP/provisions are accepted.  20 USC § 1415 (j); see 34 CFR §300.518.  Massachusetts, pursuant to the provisions of 603 CMR 28.08 (7), does not require the initiation of due process proceedings to exercise “stay put” rights (“during the pendency of any dispute regarding placement or services, the eligible student shall remain in his or her then current education program and placement unless the parents and the school district agree otherwise”) (emphasis added).

[70]   Pursuant to the IDEA, such relief may be awarded, in certain circumstances, to “prevailing parties” pursuant to a claim brought in the district court after the administrative proceedings have concluded (20 USC 1415(i)(3)(B)), such a claim is an “independent suit” and the “‘… only means by which a party may recover attorney’s fees for administrative proceedings, … because the IDEA only authorizes the courts, and not the administrative hearing officer to award the attorney’s fees’”.  In Re: Student & Arlington Pub. Schs. BSEA #250354330 MSER 310(Kantor Nir, 2024)(quoting Zipperer v. Sch. Bd. of Seminole Cnty., Fla., 891 F.Supp. 583, 586 (M.D. Fla. 1995), vacated sub nom. Zipperer v. Sch. Bd. of Seminole Cnty., Fla., 111 F.3d 847 (11th Cir. 1997) [additional internal citations omitted] and Bd. of Educ. of Oak Park v. Nathan R., 199 F.3d 377, 381 & n.10 (7th Cir. 2000) [additional internal citations and quotations omitted]).

[71]   This corresponds to Claim B(3) that I found, supra can proceed to be considered at the scheduled hearing.

[72]   Further, as discussed previously, since April 17, 2025, Parent no longer has standing to request an IEE.

[73]   Exhibit U to the Motions provides a detailed spreadsheet of translation, interpretation and language access support the District has provided when sending Parent documents, and written communications, or at meetings.  Thus, even viewing this request in the light most favorable to Parent, it appears she has actually been provided with appropriate translation and interpretation support between July 1, 2024, and April 14, 2025, contrary to what is alleged.  However, I dismiss this without prejudice now given Parent’s pro se status.

Updated on September 4, 2025

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