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In re: Carly: BSEA # 24-12891

COMMONWEALTH OF MASSACHUSETTS

DIVISION OF ADMININSTRATIVE LAW APPEALS

BUREAU OF SPECIAL EDUCATION APPEALS

In re: Carly[1]

BSEA # 24-12891

RULING ON FRANKLIN PUBLIC SCHOOLS’ MOTION TO JOIN ACTON-BOXBOROUGH REGIONAL SCHOOL DISTRICT

This matter comes before the Hearing Officer on the Motion to Join Acton-Boxborough Regional School District filed by Franklin Public Schools (Franklin or the District) on May 24, 2024 in a matter pending before the Bureau of Special Education Appeals (BSEA). On May 14, 2024, Parents filed a Hearing Request with the BSEA against Franklin, asserting that the District failed to offer Carly a free, appropriate public education (FAPE) and that they are therefore entitled to reimbursement for tuition and transportation for their unilateral placement of Carly at the Carroll School for the 2023-2024 school year.[2]

The Hearing was scheduled for June 18, 2024.

On May 24, 2024, Franklin filed its Response to [Parents’] Hearing Request, asserting that the IEPs and placements proposed for Carly have at all times been reasonably calculated to provide her with a FAPE. On the same day, Franklin filed a Motion to Join Acton-Boxborough Regional School District with an accompanying Memorandum of Law. According to the District, Parents purchased a home in Acton in or about November 2023, at which point Acton-Boxborough Regional School District (ABRSD or Acton-Boxborough) “assumed programmatic and financial responsibility” for Carly.

Franklin advances two arguments for ABRSD’s joinder. First, the District asserts that upon Carly’s enrollment in ABRSD, Acton-Boxborough had an obligation to implement her last accepted IEP. Second, Franklin contends that M.G.L. c.71B, § 5 (“the move-in law”), which provides that when students move to a new district on or after July 1 of any fiscal year, the former district of residence maintains financial responsibility for the student for the balance of the fiscal year, is inapplicable. According to Franklin, because Carly was placed unilaterally by Parents in an unapproved program, rather than placed by her Team in an approved special education program pursuant to an IEP for the 2023-2024 school year, ABRSD became fiscally responsible for Carly at the time the family moved to Acton. As such, Acton-Boxborough is a necessary party, such that complete relief cannot be granted in its absence.

On June 6, 2024, Franklin filed an assented-to Motion to Continue Hearing Date, based on the unavailability of Counsel for the District and the parties’ intention to engage in discovery and work together toward resolution of the issues underlying the Hearing Request. The continuance was allowed for good cause on the same day, and the Hearing was scheduled for August 12, 13, and 15, 2024.

On June 10, 2024, Acton-Boxborough filed a letter indicating that it does not oppose joinder, though it disputes Franklin’s assertion that ABRSD assumed financial responsibility for Carly during the 2023-2024 school year. Acton-Boxborough contends that Franklin maintains financial responsibility for Carly through the end of the fiscal year in accordance with the public policy supporting the move-in law. ABRSD also asserts that it is not financially responsible for Carly’s placement at the Carroll School because Parents did not give Acton-Boxborough the notice they were required to provide before seeking public funding of a unilateral placement.

For the reasons set forth below, Franklin’s Motion to Join ABRSD (Motion to Join) is hereby ALLOWED.

RELEVANT FACTUAL BACKGROUND

The following facts, which are drawn from the pleadings, are not in dispute and are taken as true for the purposes of this Ruling. These facts may be subject to revision in subsequent proceedings.

  1. Carly, who is nine years old, lives with her parents in Acton, Massachusetts.
  2. In October of 2021, when Carly was in first grade and a resident of Franklin, Parents arranged for a private neuropsychological evaluation. Results indicated superior intellect, dyslexia, and dyscalculia with impairment in reading, mathematics, and spelling, and an unspecified communication disorder. A report of these findings was generated and shared with Franklin during the summer of 2022.
  3. After receiving the results of this evaluation, Franklin conducted multiple evaluations of Carly in the fall of 2022, when she was in second grade. She was found eligible for an Individualized Education Program (IEP) on November 9, 2022, under a primary Communication Disability and a secondary Specific Learning Disability in math.
  4. Carly’s initial IEP (11/9/22-11/8/23) proposed a full inclusion placement, with goals in Communication and Math, Academic Consult services in the A grid, and Speech/Language and Math services in the B and C grids.
  5. On or about November 22, 2022, Parents partially rejected the IEP but consented to the placement.
  6. In December of 2022, Parents arranged for a private auditory processing evaluation. The report did not indicate the presence of a primary auditory processing disorder.
  7. In January 2023, Parents arranged for a private comprehensive speech-language evaluation of Carly. She was diagnosed with mixed receptive/expressive language disorder and phonological disorder. The associated report recommended that Carly be placed in a small, language-intensive educational environment, receive direct speech and language therapy services, extended school year programming, and an occupational therapy evaluation.
  8. Carly’s Team reconvened in March 2023 following the independent private audiology and speech-language evaluations. Franklin proposed an amended IEP that included extended school year speech/language services, additional accommodations, an executive functioning goal, and additional objectives and support in both the B and C grids.
  9. Parents contend that Carly has been diagnosed with dyslexia, dysgraphia, mixed receptive/expressive language disorder, and phonological disorder, but Franklin’s proposed IEPs ignored these diagnoses and the recommendations of the evaluators who made them.
  10. On March 28, 2023, Parents partially rejected the proposed amended IEP and rejected the proposed in-district full inclusion placement.
  11. Also on March 28, 2023, Parents informed the District of their intent to place Carly at the Carroll School for the 2023-2024 school year.
  12. Parents unilaterally placed Carly at the Carroll School in September 2023.
  13. Parents moved to Acton, Massachusetts in November 2023.
  14.  After moving to Acton, Parents unenrolled Carly from Franklin Public Schools and enrolled her in the Acton-Boxborough Regional School District.
  15.  Since Carly’s enrollment at ABRSD, Acton-Boxborough has been convening Team meetings, developing IEPs, and evaluating Carly.

LEGAL STANDARDS

                Whether ABRSD should be joined as a party in the present matter depends on both the standards governing joinder and the relevant substantive law.

  1. Joinder  

Pursuant to the BSEA’s joinder rule, set forth in Rule I(J) of the Hearing Rules for Special Education Appeals: 

Upon written request of a party, a Hearing Officer may allow for the joinder of a party in cases where complete relief cannot be granted among those who are already parties, or if the party being joined has an interest relating to the subject matter of the case and is so situated that the case cannot be disposed of in its absence. Factors considered in determination of joinder are: the risk of prejudice to the present parties in the absence of the proposed party; the range of alternatives for fashioning relief; the inadequacy of a judgment entered in the proposed party’s absence; and the existence of an alternative forum to resolve the issues.

As such, to determine whether Acton-Boxborough should be joined in the present case, I must determine whether complete relief may be granted among those who are already parties, or if ABRSD has an interest relating to the subject matter of the case and is so situated that the case cannot be disposed of in its absence.[3]

  1. Unilateral Placement

The Individuals with Disabilities Education Act (IDEA) was enacted “to ensure that children with disabilities have available to them a free appropriate public education [FAPE].”[4] FAPE is delivered primarily through a child’s IEP, which must be tailored to meet a child’s unique needs after careful consideration of the child’s present levels of academic achievement and functional performance, disability, and potential for growth.[5] “To meet its substantive obligation under the IDEA, a [district] must offer an IEP reasonably calculated to enable a child to make appropriate progress in light of the child’s circumstances.”[6] Similarly, Massachusetts FAPE standards require that an IEP be “reasonably calculated to confer a meaningful educational benefit in light of the child’s circumstances”[7] and designed to permit the student to make “effective progress.”[8]

The IDEA permits reimbursement for parents who place their children at private schools without the consent or referral of the school district if a decisionmaker finds that (1) the school district failed to provide a FAPE and (2) the private school placement is appropriate.[9] Reimbursement is an equitable remedy, calculated to ensure that school districts cover expenses they should have been paying in the event they do not fulfill their obligation to provide a student with a FAPE.[10] When a hearing officer determines that a district failed to provide a FAPE, and that the unilateral private placement is suitable, she must consider “all relevant factors, including the notice provided by the parents and the school district’s opportunities for evaluating the child” in deciding whether full or partial reimbursement for the student’s private placement is warranted.[11]

  1. The Move-In Law

Generally, responsibility for students in out-of-district programming who move from one school district to another mid-year is governed by M. G. L. c.71B, § 5, which states, in relevant part:

Notwithstanding the provisions of section 27C of chapter 29 or any other general or special law to the contrary, if a child with a disability for whom a school committee currently provides or arranges for the provision of special education in an approved private day or residential school placement,…, or his parent or guardian moves to a different school district on or after July 1 of any fiscal year, such school committee of the former community of residence shall pay the approved budgeted costs, including necessary transportation costs, of such day or residential placement,…of such child for the balance of such fiscal year.[12]

ANALYSIS

                In its Motion to Join Acton-Boxborough Regional School District, Franklin contends that Acton-Boxborough is a necessary party because ABRSD assumed programmatic and fiscal responsibility for Carly in November 2023, when Parents moved to Acton and enrolled Carly in its school district. According to the District, the move-in law governs situations where a student has been placed by her school district in an approved out-of-district program pursuant to her IEP, then moves mid-year. It is inapposite where, as here, a student’s parents place her unilaterally in an unapproved program.  

                In its June 10, 2024 letter assenting to joinder, ABRSD agrees that it assumed programmatic responsibility for Carly when her family moved to Acton after the beginning of the 2023-2024 school year.  Acton-Boxborough confirmed that it has been holding Team meetings, developing IEPs, and evaluating Carly. ABRSD asserts, however, that Franklin, not itself, is financially responsible for Carly through the end of the fiscal year, “consistent with the public policy supporting the . . . ‘move-in’ law.” Moreover, Acton-Boxborough contends that even if it would otherwise be fiscally responsible for Carly’s placement at the Carroll School, Parents did not provide the required notice before seeking public funding of a unilateral placement. ABRSD understood Carly to be privately placed, at Parents’ expense, until Franklin sought to join ABRSD to the instant matter.

                  In this matter, Parents assert that Carly has been denied a FAPE and that, as such, they are entitled to reimbursement for tuition and transportation for their unilateral placement of Carly at the Carroll School for the 2023-2024 school year. ABRSD has acknowledged its programmatic responsibility for Carly and, therefore, its interest relating to the subject matter.[13] Acton-Boxborough and Franklin disagree as to which district bears financial responsibility. Should I find that Carly has been denied a FAPE and that the Carroll School is a suitable placement, Parents may be entitled to reimbursement.[14] The school district that is financially responsible for Carly during the relevant time period will be required to cover that cost.[15] Because I cannot say, at this early stage in the case, which school district that is, or whether each district may be partially responsible, Franklin bears the risk of prejudice in Acton-Boxborough’s absence.

            As the district that is programmatically responsible for Carly, ABRSD has an interest relating to this subject matter. Moreover, given that the question of financial responsibility remains open, in ABRSD’s absence Franklin bears the risk of prejudice. Under these circumstances, joinder is proper.

CONCLUSION

                For the reasons set forth above, I find that Acton-Boxborough Regional School District is a necessary party to this matter.

ORDER

  1. Franklin’s unopposed Motion to Join Acton–Boxborough Regional School District is hereby ALLOWED.
  2. The matter will proceed to Hearing on August 12, 13, and 15, 2024, beginning at 10:00 AM each day. 

By the Hearing Officer:[16]

   /s/  Amy Reichbach

Date:  July 2, 2024

[1] “Carly” is a pseudonym chosen by the Hearing Officer to protect the privacy of the Student in documents available to the public.

[2] On May 22, Parents filed a Motion for Expedited/Accelerated Hearing and Order Compelling Certain Discovery (Motion), seeking an order that would permit their expert to observe a program that had previously been proposed by Franklin. On May 29, 2024, Franklin filed an Opposition thereto. The undersigned Hearing Officer allowed Parents’ Motion on June 13, 2024, and ordered Franklin to arrange for an observation of its third-grade program by Parents’ educational consultant prior to the end of the 2023-2024 school year.

[3] See BSEA Hearing Rule I(J).

[4] 20 USC § 1400 (d)(1)(A).

[5] See Endrew F. v. Douglas Cty Reg’l Sch. Dist., 580 U.S. 386, 400 (2017); D.B. ex rel Elizabeth B. v. Esposito, 675 F.3d 26, 34 (1st Cir. 2012).

[6] Endrew F., 137 S. Ct. at 999.

[7] C.D. v. Natick Pub. Sch. Dist., 924 F.3d 621, 624-25 (1st Cir. 2019) (cert denied).

[8] 603 CMR 28.05(4)(b) (IEP must be “designed to enable the student to progress effectively in the content areas of the general curriculum”).

[9] See 20 USC § 1412(a)(10)(C)(ii); Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 247 (2009) (explaining that § 1415(i)(2)(C)(iii) “authorizes reimbursement for the cost of private special-education services when a school district fails to provide a FAPE and the private-school placement is appropriate”); In Re: Hampden-Wilbraham Regional School District and Lauren, BSEA #1505285 (Reichbach, 2015) (applying this standard). See also G.D. v. Swampscott Pub. Sch., 27 F.4th 1, 6 (1st Cir. 2022) (noting that a court may order a school district to reimburse parents for a unilateral placement but is not required to do so unless it finds that the school district failed to provide the child with a FAPE in a timely manner and the private school placement was “proper” (quoting Florence Cnty. Sch. Dist. Four v. Carter ex rel. Carter 510 U.S. 7, 15 (1993))); In Re: Uma, BSEA #2103885 (Reichbach, 2021) (allowing reimbursement for unilateral placement where school district’s proposed IEP and placement were not reasonably calculated to provide student with a FAPE, and nexus between special education required by the student and special education provided in the private placement was satisfied); In Re: Greenwood Public Schools, BSEA #1403564 (Figueroa, 2014) (granting reimbursement for parents’ unilateral placement because the school district’s proposed program failed to offer the “programming with similar cognitive and learning style peers that offered language-based instruction across settings and throughout the day” that student required, whereas the private program provided student with such programming, consistent with the recommendations of parents’ experts).

[10] See Sch. Comm. Of Burlington v. Dep’t of Educ., 471 U.S. 359, 370-71 (1985) (“Reimbursement merely requires the Town to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper IEP”); Roe v. Healey, 78 F.4th 11, 16 (1st Cir. 2023) (“Reimbursement of educational expenses is limited to money spent by parents ‘for education-related expenditures that the state ought to have borne’” (quoting Doucette v. Georgetown Pub. Sch., 936 F.3d 16, 32 (1st Cir. 2019))); Diaz-Fonesca v. Puerto Rico, 451 F.3d 13, 31 (1st Cir. 2006) (clarifying that reimbursements are equitable remedies to cover expenses parents incur on private education services “to which their child was later found to have been entitled” (quoting Nieves-Marquez v. Puerto Rico, 353 F.3d 108, 124 (1st Cir. 2003))); In Re: Framingham Public Schools, BSEA #2312178 (Mitchell, 2024) (“Reimbursement awards are equitable remedies intended to ensure that Districts pay for the expenses they should have been paying if they do not meet their obligations to provide a student with a FAPE”).

[11] Forest Grove, 557 U.S. at 247; Doe v. Newton Pub. Sch., 48 F.4th 42, 59 (1st Cir. 2022) (noting that discretionary equitable relief granted under the IDEA must account for “all relevant factors” (citing Florence Cnty. Sch. Dist., 510 U.S. at 16)); In Re: Framingham Public Schools, BSEA #2312178 (Mitchell, 2024) (explaining that because of the equitable nature of reimbursement awards, all relevant factors must be factored into a reimbursement award when such an award is otherwise warranted).

[12] M.G.L. c.71B, § 5. Additional information regarding moves between school districts that occur between April 1 and June 30 has been omitted, as it is not relevant here.

[13] See In Re: Dighton-Rehoboth Public Schools and Fall River Public Schools, BSEA #070756 (Figueroa, 2006) (noting that whether a school district is a necessary party in a BSEA matter turns on whether that district bears any fiscal or programmatic responsibility for the student).

[14] See In Re: Concord Public Schools, BSEA #2100891 (Berman, 2021) (ordering school district to reimburse parents for their unilateral placement because the district had failed to provide the student with a FAPE and the private school was an appropriate placement); seealso In Re: Hampden-Wilbraham Regional School District and Lauren, BSEA #1505285 (Reichbach, 2015) (finding parents entitled to reimbursement for the unilateral placement of their child at a private school because the school district failed to provide the child with a FAPE and the private school program was appropriate); In Re: Greenwood Public Schools, BSEA #1403564 (Figueroa, 2014) (same).

[15] See In Re: Clinton Public Schools and Gabrielle, BSEA #1505232 (Reichbach, 2015) (explaining that two school districts sharing financial responsibility for a student pursuant to a Department of Elementary and Secondary Education Assignment of School District Responsibility letter would be required to share the cost of the student’s education should reimbursement be ordered for the student’s unilateral placement); see also In Re: Pittsfield Public Schools and Central Berkshire Regional School District (Figueroa, 2008) (ordering the district financially responsible for a student to reimburse her parents for their unilateral placement of her in a private program);  In Re: Marblehead Public Schools and Brian (Oliver, 2008) (finding a school district financially responsible for a student, and ordering that district to reimburse parents for their unilateral placement of the student at a private school).

[16] The Hearing Officer gratefully acknowledges the diligent assistance of legal intern Oliva Stevens in the preparation of this Ruling.

Updated on July 8, 2024

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