COMMONWEALTH OF MASSACHUSETTS
DIVISION OF ADMINISTRATIVE LAW APPEALS
BUREAU OF SPECIAL EDUCATION APPEALS
In re: Carly[1]
BSEA # 24-12891
RULING ON PARENTS’ MOTION FOR EXPEDITED/ACCELERATED HEARING AND ORDER COMPELLING CERTAIN DISCOVERY
On May 14, 2024, Parents filed a Hearing Request with the Bureau of Special Education Appeals against Franklin Public Schools (Franklin or the District). This matter comes before the Hearing Officer on a Motion for Expedited/Accelerated Hearing and Order Compelling Certain Discovery (Motion) filed by Parents on May 22, 2024. During a Conference Call that took place on June 4, 2024, Parents clarified that they were not seeking expedited status for the Hearing Request, but rather, an order that would permit their expert to observe a program that had previously been proposed by Franklin, and an expedited ruling on their Motion given the impending end of the school year. On May 29, 2024, Franklin filed an Opposition to Parents’ Motion for Expedited/Accelerated Hearing and Order Compelling Certain Discovery (Opposition). The parties supplemented their written Motion and Opposition, respectively, with brief oral arguments during the Conference Call. As neither party has requested a hearing on the motion and neither testimony nor further oral argument would advance the Hearing Officer’s understanding of the issues involved, this Ruling is being issued without a hearing pursuant to Bureau of Special Education Appeals Hearing Rule VII(D).
For the reasons set forth below, Parents’ Motion is hereby ALLOWED.[2]
- FACTUAL BACKGROUND AND PROCEDURAL HISTORY[3]
On May 14, 2024 Parents filed a Hearing Request against Franklin asserting that the District failed to offer Carly a free, appropriate public education (FAPE) and, as such, they are entitled to reimbursement for their unilateral placement of Carly at the Carroll School for the 2023-2024 school year. According to the parties’ pleadings, 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. Carly’s initial IEP (11/9/22-11/8/23) proposed a full inclusion placement. On or about November 22, 2022, Parents partially rejected the IEP but consented to the placement.
Following independent private audiology and speech-language evaluations, Carly’s Team reconvened in March 2023 and proposed an amended IEP, which included additional accommodations, an executive functioning goal, additional objectives and support in both the B and C grids, and extended school year speech/language services.
According to Parents, 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. On or about March 28, 2023, Parents partially rejected the proposed amended IEP and rejected the proposed in-district full inclusion placement.
Parents contend that they had to move out of Franklin in order to provide Carly with the educational services she needed to make progress, though they did not indicate in their Hearing Request when this move occurred. Franklin’s responsive pleadings indicate that the family moved to Acton, Massachusetts in November 2023, at which time they unenrolled Carly from Franklin and enrolled her in Acton-Boxborough Regional School District (ABRSD).
In or about March 2024, Parents contacted Franklin to request that their independent evaluator observe Franklin’s proposed third grade programming, based on its last proposed IEP. The District denied this request, on three distinct grounds: Carly was no longer enrolled in the District; the prior proposed IEP was not Carly’s proposed placement; and Franklin was no longer programmatically or financially responsible for her.
In their Hearing Request, Parents seek reimbursement for the cost of Carroll School tuition and transportation for the 2023-2024 school year.
The Hearing was scheduled for June 18, 2024.
On May 22, 2024, Parents filed the instant Motion. They assert that pursuant to several Bureau of Special Education Appeals Hearing Rules for Special Education (Hearing Rules) and the Massachusetts and the Federal Rules of Civil Procedure, they are entitled to an order compelling Franklin to allow their independent educational consultant to observe and inspect the District’s proposed programming and placement for the current 2023-2024 academic year which will end on approximately June 17, 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. Furthermore, according to Franklin, as of November 2023, ABRSD became financially and programmatically responsible for Carly.[4]
On May 29, 2024, Franklin filed its Opposition, arguing that the observation sought by Parents is not allowed under the BSEA Hearing Rules, nor required under M.G.L. c. 71B, § 3.
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.
- DISCUSSION
In their Motion, Parents offer several arguments in support of their request for an order compelling Franklin to permit their expert to observe the program proposed for Carly for the 2023-2024 school year. First, they assert, Rule 26(b)(1) of the Massachusetts and Federal Rules of Civil Procedure are broad, such that a party may obtain discovery regarding any matter, not privileged, relevant to the subject matter of the pending action, including information that may be reasonably calculated to lead to the discovery of admissible evidence. Second, they contend, Mass. R. Civ. P. 34(2) permits a party to serve on any other party a request “to permit entry onto designated land or other property possessed or controlled by the responding party, so that the requesting party may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it.” To support these discovery-based arguments, Parents emphasize that the BSEA has recognized that “solid information” about District programs, which can be gained through observation, may be critical to the outcome of a case and, as such, an observation is highly relevant and directly related to their claims. Finally, citing the IDEA, M.G.L. c. 71B, § 3, and 603 CMR 28.07(1)(a)(3), Parents rely on the “observation law,” which they argue “unequivocally grants the Petitioner the right to observation of the District’s proposed program by an individual of their own choosing,” such that Parents and their experts may have “the opportunity to test the District’s proposed IEP’s representations against the reality on the ground.”
In its Opposition, Franklin contends that Parents had the opportunity to observe, or have their expert observe, the program proposed for Carly for the 2023-2024 school year at any time prior to her unenrollment from Franklin in November 2023. Parents did not request such an observation while Carly was enrolled in the District, or at any time prior to March 28, 2024. Moreover, neither the BSEA Hearing Rules, which govern formal and informal exchange of documents, interrogatories, and depositions in BSEA proceedings, nor the Massachusetts Formal Standard Adjudicatory Rules of Practice and Procedure, which govern administrative proceedings in Massachusetts, provides a mechanism for parents to compel a school district to allow them to inspect or observe a prior or current proposed program. Finally, Franklin asserts that that M.G.L. c. 71B, § 3’s “observation law” is limited in scope, such that it permits Parents to observe only Carly’s current program and/or a program that is presently proposed for her. Carly no longer resides in Franklin, and as such the program contemplated for her in the 11/09/2022-11/8/2023 proposed IEP, is no longer her “proposed program,” as Franklin no longer bears programmatic or financial responsibility for her.
- The “Observation Law”: Massachusetts General Law Chapter 71B, § 3 and 603 CMR 28.07(1)(a)(3)
As acknowledged by the United States Department of Education’s Office of Special Education and Rehabilitative Services (OSERS), access to observe children in current classrooms or proposed educational placements is a matter of State and/or local policy.[5] As such, I turn to Massachusetts law.
Under M.G.L. c. 71B, § 3:
To ensure that parents can participate fully and effectively with school personnel in the consideration and development of appropriate educational programs for their child, a school committee shall, upon request by a parent, provide timely access to parents and parent-designated independent evaluators and educational consultants for observations of a child’s current program and of any program proposed for the child, including both academic and non-academic components of any such program. Parents and their designees shall be afforded access of sufficient duration and extent to enable them to evaluate a child’s performance in a current program and the ability of a proposed program to enable such child to make effective progress. School committees shall impose no conditions or restrictions on such observations except those necessary to ensure the safety of children in a program or the integrity of the program while under observation or to protect children in the program while under observation or protect children in the program from disclosure by an observer of confidential and personally identifiable information in the event such information is obtained in the course of an observation by a parent or a designee.
The implementing regulation, 603 CMR 28.07(1)(a)(3), provides parents with “the right to observe any program(s) proposed for their child if the child is identified as eligible for special education services.” This right is framed within the context of informed consent for evaluations and placement; it allows parents to observe a program before they decide to place their child in that program.[6]
To determine whether Parents are entitled to an order compelling Franklin to allow their expert to observe a program that was, at one time, proposed for Carly in a now-expired IEP, I turn to canons of statutory interpretation. Specifically, I must decide whether the term “proposed program” may apply in these circumstances.
- Statutory Interpretation
Generally, a statute is interpreted “according to the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated.”[7] In interpreting a statute, case law dictates that the decision-maker begin with its plain language, and enforce the statute according to its plain wording as long as that wording is “clear and unambiguous” and “its application would not lead to an absurd result.”[8] Furthermore, the words and phrases of a statute may not be viewed in isolation; they must be understood within the larger context of the statute.[9] “Where the statutory language ‘does not provide a definite answer to the question,’ we consider other sources, including legislative history, to obtain a resolution.”[10]
- Application
The plain language of M.G.L. c. 71B, § 3 allows parents and their independent evaluators and educational consultants to observe a proposed program to ensure that parents “can participate fully and effectively with school personnel in the consideration and development of appropriate educational programs for their child” and assess “the ability of a proposed program to enable such child to make effective progress.” Although this language suggests that “proposed program” refers to a program that is currently under consideration for a child, it is not entirely clear and unambiguous in that meaning.[11]
I turn next to the regulation, 603 CMR 8.07(1)(a)(3). Its plain language, which permits parents of children eligible for special education to “observe any program(s) proposed for their child” is no clearer on the question before me than the language of the statute. The fact that it appears within a subsection discussing informed consent for placement, however, suggests that the purpose of allowing parents (or their experts) to observe “any program proposed for their child” is to assist parents in deciding whether to consent to a particular future placement.[12]
Therefore, for additional direction in interpreting the statute and its accompanying regulations, I turn to guidance from the Massachusetts Department of Elementary and Secondary Education (DESE), the state agency charged with, among other things, overseeing the provision of special education to eligible Massachusetts students.[13] In 2009, shortly after the amendment of section 3 of G.L. c. 71B to require school districts to permit parents and their independent evaluators and educational consultants to observe their child in her current or proposed special education program, DESE issued a relevant Advisory outlining key elements of observation policies and practices.[14] This Advisory buttresses Franklin’s position, as it specifies that “[t]he purpose of the law is to ensure that parents can participate fully and effectively in determining the child’s appropriate educational program.”[15]
None of these sources suggests that the term “proposed program” in the “observation law” is intended to extend to a program that had been proposed for a child in a now-expired IEP. For the reasons above, I conclude that M.G.L. c. 71B, § 3 and 603 CMR 28.07(1)(a)(3) do not permit the observation Parents seek.
I turn next to discovery rules, to determine whether they permit Parents’ educational consultant to observe the program proposed for Carly in the 11/9/22-11/8/23 IEP.
- Discovery Rules
Hearing Officers are bound by both Bureau of Special Education Appeals Hearing Rules for Special Education (Hearing Rules) and the Standard Rules of Adjudicatory Practice and Procedure, 801 Code Mass Regs 1.01 (Adjudicatory Rules).[16] BSEA Hearing Rule V governs discovery, or the formal and informal exchange of information, in BSEA proceedings. Rule V states that discovery may occur in the form of interrogatories (written questions), production of documents (written requests for records), and depositions (sworn testimony taken outside of a hearing).[17] Similarly, the Adjudicatory Rules found at 801 CMR 1.01(8) allow for discovery in the form of interrogatories, production of documents, and depositions. Neither BSEA Hearing Rule V nor 801 CMR 1.01(8) addresses discovery in the form of observations or inspections.
Although Hearing Officers are not bound by the rules of evidence or civil procedure applicable to Massachusetts or federal courts, these rules provide useful guidance, particularly where an issue is not addressed squarely by the BSEA Hearing Rules or the Adjudicatory Rules. As such, I now examine each Rule cited by Parents in support of their position that they are entitled to an Order compelling Franklin to permit their educational consultant to observe the program proposed for Carly in the 11/9/22-11/8/23 IEP.
Rule 26(b)(1) of both the Massachusetts and the Federal Rules of Civil Procedure permits parties to obtain discovery regarding any nonprivileged matter that is relevant to the pending action, including the claim or defense of either party.[18] Information within this scope need not be admissible at hearing, so long as the information sought is “reasonably calculated to lead to the discovery of admissible evidence.”[19]
Rule 34(a)(2) of both the Massachusetts and the Federal Rules of Civil Procedure permits parties to obtain discovery by entering onto property owned or controlled by the responding party in order to “inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it.”[20] Rule 34 is governed by the standards of Rule 26(b), which states that parties may obtain discovery proportional to the needs of the case, considering factors such as the parties’ relative access to the information and the importance of the discovery in resolving the issue.[21] Under Rule 26(b), decision-makers will grant discovery requests for inspection when the order does not place an undue burden on the party whose property and operations are to be inspected.[22] To determine whether an inspection will be unduly burdensome, the decision-maker balances the extent to which the inspection will aid in the search for truth against any burdens or dangers created by the inspection.[23] That an inspection of operations involves observing people, including vulnerable populations such as minors, people with disabilities, or incarcerated individuals, will not preclude a decision-maker from granting the request, so long as the benefit of the information to be gathered outweighs the potential burden.[24]
The benefit of an observation of Franklin’s third grade programming by Parents’ expert is significant and speaks to the key issue presented in the instant litigation. As Parents assert in their Motion, an inspection of the operation of the program will produce solid information that may be highly relevant to the question of whether the IEP that Franklin proposed for Carly in November 2022, and amended in March 2023, was reasonably calculated to provide her with a FAPE. Although the IEP has since expired, the observation would occur during the same school year (2023-2024) for which the program was initially proposed. Without conducting such an observation, Parents would not have the opportunity to gather important information about the program proposed for Carly in the now-expired IEP, and their relative access to such information about the program is considerably less than that of the District.
In its Opposition, Franklin argues that an observation of the program so late in the school year would be unduly burdensome. The District contends that asking members of the school’s administration to accompany the evaluator during the final days of school will be highly inconvenient. Franklin also states that end-of-year testing, presentations, and field trips occurring during the last weeks of the school year increase the potential observation’s burden on the school community.
I find that the benefit of the information to be gathered in an observation of Franklin’s program outweighs the potential risks posed by such an observation, and that the request for inspection is therefore not unduly burdensome.
Another concern that may arise in the context of observing a proposed program is the privacy of the other students assigned to the same program. The BSEA has established procedures for maintaining privacy in such situations, an issue that arises frequently when parents’ experts review the IEPs of proposed classmates.[25] In the instant matter, Parents are cautioned that any report produced by their educational consultant, in conjunction with her observation of the program proposed for Carly in Franklin’s 11/9/22 to 11/8/23 IEP, must not include any personally identifiable information regarding other students. This will allow Parents’ expert to gather crucial programmatic information during the observation without compromising the privacy of the students enrolled.
CONCLUSION
Upon consideration of Parents’ Motion for Expedited/Accelerated Hearing and Order Compelling Certain Discovery and Franklin’s Opposition thereto, I find that Parents are entitled to the order they seek.
ORDER
Parents’ Motion is hereby ALLOWED.
Franklin Public Schools shall arrange for an observation by Parents’ educational consultant prior to the end of the current school year. The parties are instructed to work together to develop a protocol, similar to that employed in connection with the review of peer IEPs, to ensure that other students’ privacy interests are not violated by the observation and/or any report(s) derived therefrom.
The matter will proceed to hearing on August 12, 13, and 15, 2024, beginning at 10:00 AM each day.
By the Hearing Officer:[26]
/s/ Amy Reichbach
Date: June 13, 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] I note that during the Conference Call on June 4, 2024, I indicated that this outcome was likely and suggested that the District arrange for Parents’ educational consultant to observe the program prior to the end of the school year.
[3] The information in this section is drawn from the parties’ pleadings and is subject to revision in further proceedings.
[4] Also on May 24, 2024, 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) “assumed programmatic and financial responsibility” for Carly. On June 10, 2024, ABRSD 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.
[5] See U.S. Dep’t of Educ., Off. of Special Educ. and Rehab. Serv., Letter to Mamas, (May 26, 2004), https://sites.ed.gov/idea/files/policy_speced_guid_idea_letters_2004-2_mamas052604placement2q2004.pdf.
[6] See 603 CMR 28.07(1).
[7] Industrial Fin. Corp. v. State Tax Comm’n, 367 Mass. 360, 364 (1975) (internal citations omitted); see Commonwealth v Escobar, 490 Mass. 488, 493-94 (2022) (quoting Commonwealth v. Morasse, 446 Mass. 113, 116 (2006) (internal citation omitted)) (“Where a statute does not define a term, ‘[w]e derive the words’ usual and accepted meanings from sources presumably known to the statute’s enactors, such as their use in other legal contexts and dictionary definitions.’”)
[8] See Martha’s Vineyard Land Bank Comm’n v. Assessors of W. Tisbury, 62 Mass. App. Ct. 25, 27 (2004) (internal quotation marks and citations omitted) (“Where the language of a statute is clear and unambiguous, it is conclusive as to legislative intent . . . and the courts enforce the statute according to its plain wording . . . so long as its application would not lead to an absurd result.”) See also Purity Supreme, Inc. v. Attorney Gen., 380 Mass. 762, 782 (1980) (“A general term of a statute may not be construed differently from its plain meaning, especially in the absence of legislative or administrative intent so to construe it.”)
[9] See Selectmen of Topsfield v. State Racing Comm’n, 324 Mass. 309, 312-13 (1949) (“All the words of a statute are to be given their ordinary and usual meaning, and each clause or phrase is to be construed with reference to every other clause or phrase without giving undue emphasis as to any one group of words, so that, if reasonably possible, all parts shall be construed as consistent with each other so as to form a harmonious enactment effectual to accomplish its manifest purpose.”)
[10] Escobar, 490 Mass. at 494 (quoting Matter of the Liquidation of Am. Mut. Liab. Ins. Co., 440 Mass. 796 (2004) (internal citation omitted)).
[11] See Martha’s Vineyard, 62 Mass. App. Ct. at 27.
[12] See Selectmen of Topsfield, 324 Mass. at 312-13.
[13] See Dowling v. Registrar of Motor Vehicles, 425 Mass. 523, 525 (1997) (“An administrative agency’s interpretation of a statute within its charge is accorded weight and deference”); see also Commonwealth v. Fleury, 489 Mass. 421, 424-5 (2022) (where statutory language is ambiguous, decision-maker may seek guidance from “extrinsic sources, including the legislative history and other statutes, for assistance). Cf. Purity Supreme, 380 Mass. at 782 (“In the absence of clear error, the interpretation an administrative body gives to its own rule is entitled to deference”).
[14] Technical Advisory SPED 2009-2: Observation of Education Programs by Parents and their Designees for Evaluation Purposes (Jan. 8, 2009).
[15] Id. See also Letter to Mamas (noting, in the context of a discussion of access to observe children in current classrooms or proposed educational placements, that “[o]ne of the key purposes of the IDEA Amendments of 1997 is to strengthen and expand the role of parents in the identification, evaluation, and educational placement of their child”).
[16] See 801 CMR 1.01(8) (administrative rules governing discovery before the BSEA and other Massachusetts agencies).
[17] BSEA Hearing Rules for Special Education Appeals, Rule V.
[18] Mass. R. Civ. P. 26(b)(1); Fed. R. Civ. P. 26(b)(1).
[19] Mass. R. Civ. P. 26(b)(1).
[20] Mass. R. Civ. P. 34(a)(2); Fed. R. Civ. P. 34(a)(2) (“A party may serve on any other party a request within the scope of Rule 26(b)…to permit entry onto designated land or other property possessed or controlled by the responding party, so that the requesting party may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it”).
[21] Fed. R. Civ. P. 26(b)(1) (“Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.”)
[22] See Belcher v. Bassett Furniture Indus., Inc., 588 F.2d 904, 908 (4th Cir. 1978).
[23] See id.
[24] See New York State Ass’n for Retarded Children v. Carey, 706 F.2d 956, 960, 961 (2d Cir. 1983) (permitting party to inspect a mental health facility for children, including making observations and interviewing class and staff members, because the benefit of the information to be gathered outweighed any potential risks); seealso Chunn v. Edge, No. 20-cv-1590, 2020 U.S. Dist. LEXIS 67896, at *3-4 ( E.D.N.Y. Apr. 15, 2020) (allowing party to inspect a detention center because the potential burdens or dangers posed by the observation were outweighed by the value of the information to be collected).
[25] See, e.g., In Re: Haverhill Public Schools and Jerrol, BSEA #1900557 (Byrne, 2018) (noting that the protocol for sharing peer IEPs, established in a long line of consistent decisions, entails the cleansing of all personally identifiable references); In Re: Manchester-Essex Regional School District, BSEA #1702730 (Berman, 2017) (denying protective order and noting that “de-identified” records or information – that is, records where all personally identifiable information has been removed – are discoverable); In Re: Wellesley Public Schools and Vic, BSEA #1503712 (Oliver, 2015) (allowing discovery of IEPs and Behavioral Plans “appropriately cleansed/ redacted of all personally identifiable information of students who would be grouped with [Student] for the special education program” proposed by the district for the relevant school year).
[26] The Hearing Officer gratefully acknowledges the diligent assistance of legal intern Oliva Stevens in the preparation of this Ruling.