COMMONWEALTH OF MASSACHUSETTS
DIVISION OF ADMINISTRATIVE LAW APPEALS
BUREAU OF SPECIAL EDUCATION APPEALS
In re: Benjamin[1]
BSEA #2401643
RULING ON BROCKTON PUBLIC SCHOOLS’ PARTIAL MOTION TO DISMISS
This matter comes before the Hearing Officer on the Partial Motion to Dismiss (“Partial MtD”)filed by Brockton Public Schools (Brockton, or the District) on October 6, 2023. Parent requested additional time to respond, which was granted, and on October 16, 2023, she filed her Response. As neither testimony nor oral argument would advance my understanding of the issues involved, I am issuing my ruling on this Motion without a hearing, pursuant to Bureau of Special Education Appeals (BSEA) Hearing Rule VII(D).
For the reasons set forth below, Brockton’s Partial MtD is hereby ALLOWED.
- FACTUAL BACKGROUND AND RELEVANT PROCEDURAL HISTORY[2]
Benjamin is a twenty-two-year-old resident of Brockton, Massachusetts who carries a diagnosis of autism spectrum disorder (ASD). On August 16, 2023, Mother[3] filed a Hearing Request on his behalf,[4] contending that Benjamin had missed a year of education and related services amid the COVID-19 outbreak, and requesting that he be allowed to remain in his current placement at the Center for Applied Behavioral Instruction (CABI) beyond the age of 22 as compensation.[5] Specifically, Mother asserted that Brockton failed to implement Benjamin’s last agreed-upon individualized education program (IEP) during the 2021-2022 school year, as Benjamin was out of school from June 2021 to June 2022 and did not receive special education or related services or tutoring during this period. Mother requested one additional year of education for Benjamin in the form of “COVID-19 Compensatory Education and Related Services.”
Mother submitted a number of documents along with her Hearing Request, which provide additional detail as to her allegations. Mother contends that on or about June 15, 2021, Benjamin’s placement at the Darnell School (a Horace Mann Educational Associates program) was terminated, and Brockton failed to timely secure another placement for him. According to these same documents, on June 16, 2021, the District sent a referral packet to CABI, and Benjamin was accepted on August 30, 2021. Due to staffing shortages, however, no start date could be ascertained for him at that time. Benjamin ultimately began attending CABI on or about July 22, 2022. In the interim, Brockton offered to send referral packets to other out-of-district programs, but Parent refused consent. The District also offered virtual tutoring services and tutoring at a library or an in-district school during school hours, but Parent did not agree to the timing of these offerings.
On August 25, 2023, Brockton filed its Response to the Hearing Request Filed by the Parent (Response), also accompanied by many documents that provided background information for the present dispute. The District explained that Benjamin, who has complex disabilities and requires a specialized setting that is able to meet his needs, moved to Brockton and enrolled in the District in April 2020. At that time, his last accepted IEP was for the period from 12/6/2017 to 12/5/2018, with placement at CABI. At some point before Benjamin moved to Brockton, his previous school district placed him at The League School for an extended evaluation; he moved to Brockton while he was still undergoing that evaluation. In early February 2020, Brockton met with Benjamin’s parents and received consent to send referral packets to multiple public and private special education placements. Benjamin had not been accepted anywhere and was still awaiting placement at the time schools were shut down in March 2020 due to the COVID-19 pandemic. Beginning in September 2020, Brockton provided Benjamin with a Chromebook and access to remote instruction through Brockton High School. When schools reopened for the most complex students and no placement had yet been identified, the District offered, but Mother declined, to send Benjamin to a public school in Brockton to receive some services while placement was pending. Benjamin remained without a placement until he began attending Darnell on or about January 19, 2021[6], which he attended until Darnell terminated his placement on June 15, 2021.
In preparing its referral packet for CABI in June 2021, Brockton proposed a new IEP dated 4/8/21 to 4/7/22, with placement at CABI. Mother accepted this IEP in part and accepted the accompanying placement at CABI. According to Brockton, while the Team waited for an opening at CABI, the District met with Mother numerous times and offered tutoring in the interim. Mother rejected that offer, as well as an offer of occupational therapy services in the home or at a district school. She also rejected an IEP proposed by Brockton for the period from 4/13/2022 to 4/13/23.
In its Response, the District asserted that it had provided and proposed appropriate IEPs for Benjamin for all relevant periods; that any procedural errors that had occurred were de minimus and did not deny Benjamin a free appropriate public education (FAPE); that Brockton had not discriminated against Benjamin on the basis of his disability; and that some of Mother’s claims were barred by the applicable statute of limitations.
On September 1, 2023, Mother filed a rebuttal to Brockton’s Response and on September 8, 2023, the Hearing scheduled for September 20, 2023 was postponed to November 1, 2023, for good cause, pursuant to the parties’ joint request. Following a Pre-Hearing Conference on September 13, 2023 and a subsequent Conference Call, I issued an Order outlining the issues for Hearing. Pursuant to that Order, Brockton submitted a Request to Amend Issues on September 29, 2023; Mother did not submit any proposed changes. As such, the issues for Hearing, incorporating that request, are as follows:
- Whether Mother has educational decision-making authority, and/or guardianship, with respect to Student;
- Whether Brockton failed to provide Student with a free appropriate public education (FAPE) between August 16, 2021 and the present and if so, what is the appropriate remedy;
- Whether Brockton failed to provide COVID-19 Compensatory Education and Related Services for Student to compensate for school closures, missed services, etc. during the COVID-19 Pandemic, between March 2020 and August 16, 2021, and if so, what is the appropriate remedy;[7]
- Whether Brockton committed any substantive or procedural errors in connection with Student’s termination from the Darnell School on or about June 15, 2021, and if so, what is the appropriate remedy;
- Whether the applicable statute of limitations bars or otherwise limits claims B, C, and/or D, above; and
- Whether any award of compensatory services should be reduced or denied because of (i) Parent’s conduct in refusing education and related services or alternate placement or (ii) Parent’s obstruction of the placement process.
On October 6, 2023, the District filed the instant Partial MtD and Memorandum of Law, asserting that Mother’s claims for compensatory services for the period prior to August 8, 2021 must be dismissed, as they are beyond the statute of limitations and she has not articulated any facts that would warrant an exception.[8]
On October 16, 2023, Mother filed her Response (MtD Response). She maintains that Brockton is responsible for Benjamin’s termination from The League School. She also contends although the United States Department of Special Education advised school districts, on March 17, 2021, “to tell parents, or students, that they are entitled to more time in school to prevent parents from going to BSEA proceedings” due to the COVID-19 pandemic, Mother did not know Benjamin was entitled to such services until she spoke with another parent in August, 2023, and she has not waived any of Benjamin’s rights associated with these compensatory services. Finally, Mother asserts that this matter should not impact her pending appeal of the complaint she filed with the Massachusetts Department of Elementary and Secondary Education regarding Brockton’s failure to provide Benjamin with educational and related services from June 2021 to July 2022.[9] - DISCUSSION
To determine the outcome of Brockton’s Partial MtD, I examine the legal standards governing motions to dismiss and statutes of limitation.
- Legal Standards
- Motion to Dismiss
Hearing officers are bound by the BSEA Hearing Rules for Special Education Appeals (Hearing Rules) and the Standard Rules of Adjudicatory Practice and Procedure, 801 Code Mass Regs 1.01. Pursuant to Hearing Rule XVII (A) and (B) and 801 CMR 1.01(7)(g)(3), a hearing officer may allow a motion to dismiss if the party requesting the hearing fails to state a claim upon which relief can be granted. These rules are analogous to Rule 12(b)(6) of the Federal Rules of Civil Procedure. As such, hearing officers have generally used the same standards as the courts in deciding motions to dismiss for failure to state a claim. To survive a motion to dismiss, there must exist “factual ‘allegations plausibly suggesting (not merely consistent with)’ an entitlement to relief.” In evaluating a motion to dismiss, 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.” These “[f]actual allegations must be enough to raise a right to relief above the speculative level.[12]” - Statute of Limitations Applicable to FAPE Claims
Unless a state has a specific time limitation for Individuals with Disabilities Education Act (IDEA) claims (and Massachusetts does not), the IDEA requires that the moving party “request an impartial due process hearing within 2 years of the date the parent or agency knew or should have known about the alleged action that forms the basis of the complaint.” There are two exceptions to this statute of limitations, which apply when a parent is prevented from requesting a hearing due to “specific representations by the [school district] that it had resolved the problem forming the basis of the complaint,” or because the district withheld information from the parent that it was required to provide under the IDEA. Although the analysis for § 504 and IDEA claims differs, courts and the BSEA have applied this two-year statute of limitations to FAPE claims brought pursuant to § 504 because the two are intertwined.[15]
- Motion to Dismiss
- Application of Legal Standards
In applying these standards below, I bear in mind that complaints filed by pro se parties are to be construed liberally. As explained by the First Circuit Court of Appeals, “[t]he policy behind affording pro se plaintiffs liberal interpretation 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. 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.[18]
In evaluating the District’s Partial MtD under the legal standard set forth above, I take Mother’s allegations as true, as well as any inferences that may be drawn from them in her favor. I must deny dismissal if these allegations plausibly suggest an entitlement to relief.[19]
It is undisputed that Benjamin was not in school from mid-March 2020 until January 19, 2021 and from June 16, 2021 through July 22, 2022. Mother seeks compensatory education and related services for Brockton’s failure to provide a FAPE during these periods, a remedy available under the IDEA. On its face, Mother’s Hearing Request does not assert that either of the exceptions to the statute of limitations applies. In her MtD Response, Mother contends, without reference, that Brockton was responsible for informing her that Benjamin was entitled to “more time in school,” yet she was not aware that he “was subject to be compensated for COVID-19” until August 2023.
Benjamin was, of course, entitled to a FAPE during the period of school closures, but Mother’s unsupported statement that school districts were advised by the Department of Education to inform families that special education students were entitled to more time in school is mere speculation. Even construing her pleadings liberally and viewing factual allegations in her favor, I conclude that Mother has not plausibly suggested that she was preventing from filing for hearing prior to August, 2023 due to Brockton’s withholding of information it was required to provide her under the IDEA. She could not, therefore, establish an exception to the statute of limitations. As such, any claims that accrued prior to August 16, 2021 – two years before the date of Mother’s filing – are barred as a matter of law.
- Legal Standards
- CONCLUSION
For the reasons above, the District’s Partial Motion to Dismiss is hereby ALLOWED.
ORDER
The following issues remain for hearing:
- Whether Mother has educational decision-making authority, and/or guardianship, with respect to Student;
- Whether Brockton failed to provide Student with a free appropriate public education (FAPE) between August 16, 2021 and the present and if so, what is the appropriate remedy;
- Whether any award of compensatory services should be reduced or denied because of (i) Parent’s conduct in refusing education and related services or alternate placement or (ii) Parent’s obstruction of the placement process.
The matter will proceed to an in-person Hearing at the BSEA Offices in Malden on November 1, 8, and 9, 2023.
By the Hearing Officer:
/s/ Amy M. Reichbach
Dated: October 18, 2023
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] “Benjamin” is a pseudonym chosen by the Hearing Officer to protect the privacy of the student in documents available to the public.
[2] The information in this section is drawn from the parties’ pleadings and is subject to revision in further proceedings.
[3] At the time Mother filed the Hearing Request on Benjamin’s behalf, she provided a name and mailing address for Benjamin’s father, and he was mailed all relevant documentation by the Bureau of Special Education Appeals (BSEA). Upon request, Mother also provided an email address for Father, and he has been copied on all electronic correspondence as well. To date, he has not responded.
[4] Mother has advised that she is Benjamin’s legal guardian. Though the District has not challenged this, Mother has produced no evidence in support of her contention. It is, therefore, listed as an issue for Hearing, below.
[5] At the time the Hearing Request was filed, Benjamin was twenty-one years old, but he has since turned twenty-two.
[6] Darnell accepted Benjamin on November 16, 2020, and Parent signed a placement page accepting the Darnell School placement on December 14, 2020.
[7] Although this issue was not raised explicitly in the Hearing Request, Mother has since clarified that she meant to include it. For the reasons explained in footnotes 15 to 17, infra, and the accompanying text, I construe her Hearing Request liberally. Moreover, during the Pre-Hearing Conference, Brockton agreed to address this issue through motion practice.
[8] In its Partial Motion to Dismiss, Brockton refers to August 8, 2023, which is the date that appears on the signature line of Mother’s Hearing Request. The Hearing Request was actually received by the BSEA on August 16, 2023, however, making this the operative date for statute of limitations purposes.
[9] Parent also asserts that she filed her complaint with the Massachusetts Department of Elementary and Secondary Services (DESE) on March 31, 2022 to pursue educational compensatory services for Benjamin for the period from June 2021 to July 2022, and she “could not file a complaint in two separate places at the same time.” Further, according to Parent, though the final report issued on December 22, 2022 was in favor of Brockton, on August 21, 2023, she filed a motion to appeal the decision, which was “received by Brockton and BSEA [and is] still pending. Therefore, it cannot be dismissed as Brockton requested.” As I have no jurisdiction over complaints filed with DESE, I do not address these arguments.
[10] Iannocchino v. Ford Motor Co., 451 Mass. 623, 636 (2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)).
[11] Blank v. Chelmsford Ob/Gyn, P.C., 420 Mass. 404, 407 (1995); see Kiely v. Raytheon Co., 105 F.3d 734, 735 (1st Cir. 1997).
[12] Golchin v. Liberty Mut. Ins. Co., 460 Mass. 222, 223 (2011) (internal quotation marks and citations omitted); see In Re Quabog Regional School District, BSEA #2304026 (Kantor Nir, 2023); In Re: Wakefield Public Schools, Phoenix Academy Charter Public High School, and Alex, BSEA # 2305823, 29 MSER 47 (Reichbach, 2023).
[13] 20 U.S.C. §1415(f)(3)(C).
[14] 20 U.S.C. §1415(f)(3)(D).
[15] See P.P. ex rel. Michael P. v. West Chester Area Sch. Dist., 585 F.2d 727, 736 (3rd Cir. 2009); In Re Adam and Taunton Public Schools, BSEA #1708888 (Reichbach, 2017); see also Blunt, 767 F.3d at 269 (“same two-year statute of limitations for bringing administrative claims also applied to other legal claims premised on the IDEA, such as claims under § 504”). Cf. Fry v. Napoleon Cmty. Sch., 580 U.S. 154, 170-71 (2017) (outlining, in exhaustion context, factors to be examined to determine whether a § 504 claim is independent of an IDEA claim).
[16] See Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997).
[17] Id.
[18] Id.
[19] See Iannocchino, 451 Mass. at 636 (citation omitted).
[20] See id.
[21] See Golchin, 460 Mass. at 223; 20 U.S.C. §1415(f)(3)(C)-(D).