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In re: Felix[1] BSEA # 24-11318 

COMMONWEALTH OF MASSACHUSETTS 

DIVISION OF ADMINISTRATIVE LAW APPEALS 

BUREAU OF SPECIAL EDUCATION APPEALS 

In re: Felix[1]

BSEA # 24-11318 

RULING ON THE DEPARTMENT OF ELEMENTARY AND SECONDARY EDUCATION’S MOTION TO DISMISS SYSTEMIC CLAIMS IN HEARING REQUEST                

                This matter comes before the Hearing Officer on the Motion to Dismiss Systemic Claims in Hearing Request filed by the Department of Elementary and Secondary Education (DESE) in a matter pending before the Bureau of Special Education Appeals (BSEA). On April 16, 2024, Felix filed a Hearing Request with the BSEA against DESE and Special Education in Institutional Settings (SEIS), a special unit of DESE dedicated to providing special education services to students residing in County Houses of Correction (HOCs) and other state-operated facilities.

                Felix’s Hearing Request asserts that (1) SEIS failed to provide the services on his partially accepted Individualized Education Program (IEP), and that he is therefore entitled to compensatory services, and (2) DESE’s practice of delegating at least some of the responsibility for the provision of special education services to students in HOCs to local educational agencies (LEAs) deprives all students with disabilities residing in HOCs of a free appropriate public education (FAPE), and that the BSEA should therefore order DESE to provide direct services to a class of students residing in HOCs who are not currently receiving a FAPE. Felix listed the following claims as issues in dispute:[2]

  1. Should the Hearing Officer enter an immediate order requiring SEIS to provide the services on the Student’s partially accepted 12/15/2023 to 12/14/2024 IEP (to wit: 342 minutes of Educational Services per day, 60 minutes of speech per week, and 30 minutes of counseling per week) at the Essex County House of Corrections?[3]
  2. Is the Student entitled to compensatory services due to the failure of SEIS to provide the services on the Student’s IEP since April 13, 2023?
  3. Is SEIS required by M.G.L. c. 71B, § 11A to provide the Student direct special education services as stated on the Student’s last accepted IEP?
  4. Is SEIS required to create, maintain, supervise, and administer a system that provides FAPE to students with disabilities who are confined in the Houses of Corrections?
  5. Do the provisions of 603 CMR 28.06(9) improperly abdicate the duty of the Massachusetts DESE pursuant to M.G.L. c. 71B, § 11A to provide special education services to students with disabilities who are confined in the county Houses of Correction?
  6. Should the Hearing Officer enter an order that requires DESE to provide direct special education services to the class of students who are confined in the Houses of Correction and who are not currently receiving a free and appropriate public education?

As relief, Felix requested that the BSEA issue a stay-put order requiring SEIS to provide him with the services listed in his current partially accepted IEP;[4] ordering DESE to provide him compensatory services for its failure to implement his IEP; find that DESE has improperly abdicated its responsibility to provide special education services directly in HOCs; and order DESE to provide direct special education services to the class of students confined in HOCs who are not currently receiving a FAPE.

                The Hearing was scheduled for May 21, 2024. On May 9, 2024, the parties jointly requested a three-month postponement to permit them to work together toward resolution of the issues underlying the Hearing Request. Their request was allowed for good cause, and the Hearing was scheduled for September 16, 17, and 18, 2024.

                After requesting and receiving two assented-to extensions, on June 17, 2024, DESE filed a Response to Individualized Claim and Motion to Dismiss Systemic Claims in Hearing Request (Motion to Dismiss). As to Felix’s allegations that relate specifically to him, which DESE describes as his “individualized claims,” DESE contends in its Response to Individualized Claim that these allegations concern matters largely beyond SEIS’s control; that since DESE received Felix’s last-accepted IEP it has, in all state facilities into which he has transferred, made available to him the program of special education services required by his IEP; and that any barriers to Felix’s receipt of those services arose from his decisions to decline services and the frequency of his transfers between facilities.

                In its Motion to Dismiss, DESE asserts that to the extent Felix alleges that the manner in which DESE provides special education services to students in HOCs constitutes an “ineffective system” that deprives “all students with disabilities” in HOCs of a FAPE and requests relief on behalf of a similarly situated class of students, such “systemic claim” must be dismissed. As grounds for dismissal, DESE argues this claim is also the subject of a pending action in Middlesex Superior Court, Doe, et al. v. Johnston, et al. (Middlesex Superior Court Civil Action No. 2281CV00994), and that the BSEA lacks authority to resolve systemic claims.

                On June 24, 2024, Felix filed a Response to Motion to Dismiss Systemic Claims, arguing that the pending Superior Court action does not prevent the BSEA from hearing any systemic claims, and that the BSEA can exercise its discretion to address the claim that DESE failed to provide a FAPE to students held in Houses of Correction as a matter of class relief.

                A Motion Hearing was held via a virtual platform on July 22, 2024, during which the parties supplemented their written submissions with oral argument. At this time, Felix, through his attorney, clarified that his Hearing Request was meant to encompass some claims he advanced in its body but did not list as issues in dispute. These are in the nature of “as applied” class claims. Specifically, Felix contends that he has been denied a FAPE due to SEIS’s failure to provide direct instruction as required by state law; and that DESE’s delegation to LEAs of at least some of its responsibility to provide special education services, in contravention of the direct language of M.G.L. c. 71B, § 11A, contributed to Felix’s denial of a FAPE. DESE did not object to this framing of Felix’s claims.

RELEVANT FACTUAL BACKGROUND[5]

  1. Felix is 19 years old. He has been in the custody of the Department of Children and Families since he was five years old.
  2. Felix was identified as a special education student in preschool. He has had an IEP calling for placement in a day school since at least March 2015.
  3. Felix carries a diagnosis of moderate intellectual disability, with an IQ in the extremely low range. His historical diagnoses include Autism Spectrum Disorder, Posttraumatic Stress Disorder, Attention Deficit Hyperactivity Disorder, and various mood disorders.
  4. Felix’s last accepted IEP was developed by Haverhill Public Schools (Haverhill) for the period November 2, 2022 to November 1, 2023 (2022-2023 IEP). It identified Felix’s primary disability as intellectual and noted sensory processing difficulties and weaknesses in expressive, receptive, and pragmatic language skills. The 2022-2023 IEP contained goals in four areas: Communication/Self-advocacy, Social-emotional, Transition, and Employment. It provided for occupational therapy consultation (1×30 minutes/month), speech language therapy (2×30 minutes/week), counseling (1×30 minutes/month), educational services by a special education teacher or paraprofessional (5×342 minutes/week), and extended school year (ESY) services in speech and language, counseling, and fundamental instruction (30, 30, and 180 minutes/week, respectively). Accommodations included proximity to staff, scripting and modeling, reduced distractions, scribe for written work, small group and multi-modal instruction, visual supports, concrete presentation of material, and repetition of former and new tasks. The IEP proposed placement at CREST Collaborative, a public day school.
  5. Felix’s Special Education Surrogate Parent accepted the 2022-2023 IEP and placement on November 15, 2022.
  6. Felix attended the CREST program pursuant to his IEP until his arrest on April 11, 2023.
  7. On April 12, 2023, Felix was sent to, and confined to, the Worcester Recovery Center and Hospital (WRCH), a facility operated by the Department of Mental Health (DMH).[6] The parties dispute whether he was placed in the adolescent or adult unit at WRCH.[7]
  8. It is unclear when Felix was discharged from WRCH and transferred to the Essex County House of Corrections (Middleton) (ECHC). According to Felix, he was discharged from WRCH to ECHC on May 14, 2023, where he remained until he was transferred to Bridgewater State Hospital (Bridgewater) on October 2, 2023, for a competency evaluation. He returned to ECHC in late October. DESE, on the other hand, states that Felix was transferred to ECHC on September 6, 2023, “released” on October 3, 2023, and returned to the ECHC on or about November 1, 2023.
  9. In the meantime, on September 6, 2023, Haverhill convened a Team meeting to conduct Felix’s annual review and discuss transition planning. SEIS attended.
  10. Haverhill proposed an IEP for the time period September 6, 2023, to September 6, 2024 (2023-2024 IEP). This IEP terminated the CREST placement due to Felix’s confinement at ECHC. It contained two goals––Self-management and Independent Living Skills––and proposed significantly fewer service hours than the prior IEP. The 2023-2024 IEP included counseling (1×30 minutes/week) and academic services (1×120 minutes/week, with frequency of delivery at the discretion of the teacher). ESY services included counseling (1×15 minutes/week) and functional instruction (1×120 minutes/week, frequency of delivery at discretion of teacher). The N-1 associated with this IEP noted that because SEIS does not have a current teacher onsite, SEIS would arrange a virtual platform for academic services, and Haverhill would provide counseling services through a virtual format as well.
  11. Felix’s attorney rejected the proposed 2023-2024 IEP. Felix contends that no evaluation or assessment was completed to support the reduction in goals and services between the 2022-2023 IEP and the 2023-2024 IEP, and that the only change in circumstances was his confinement.
  12.  On November 29, 2023, the SEIS teacher reported that, due to security constraints, Felix had been placed in segregated housing. According to DESE, Felix again refused to meet with the special education teacher and refused special education services.
  13.  Felix asserts that he received no educational services or instruction during the time he was confined at ECHC and at Bridgewater.
  14.  Felix was transferred to the Middlesex County House of Corrections (MCHC) on December 7, 2023.
  15.  On December 15, 2023, Haverhill reconvened Felix’s Team to address the rejection of the 2023-2024 IEP. The Team proposed a new IEP (revised 2023-2024 IEP) that reinstated the services of the 2022-2023 IEP, which had been in effect prior to Felix’s arrest. Haverhill recognized that Felix continued to be confined in the House of Corrections and committed to hiring a full-time special education teacher to provide a full school day program to him there.[8]
  16.  Felix partially accepted the proposed revised 2023-2024 IEP. He partially rejected it, noting concerns about the potential use of a paraprofessional to deliver services, and the need for in-person, rather than virtual, services.
  17.  It is unclear where Felix spent the first few months of 2024. According to DESE, Felix was transferred from MCHC to the Worcester County House of Corrections (WCHC) on January 26, 2024, and was subsequently hospitalized at Bridgewater and WRCH. Felix does not mention this transfer or hospitalization in his Hearing Request.
  18.  On or about March 12, 2024, according to Felix, he was transferred from MCHC to WRCH for an evaluation. While there, he had one session with a teacher, believed to be from SEIS.
  19.  On March 18, 2024, SEIS and Haverhill jointly developed a five-day-per-week schedule of special education services to be delivered to Felix both virtually and in-person.
  20. According to DESE, SEIS implementation of these services began on March 21, 2024.
  21. It is unclear when Felix was transferred back to ECHC. According to Felix, he was transferred from WRCH to ECHC on March 27, 2024. According to DESE, Felix was first transferred back to MCHC on March 27, then to ECHC on or about April 23, 2024.
  22. At the time the Hearing Request was filed, Felix had received no special education instruction since his arrest, with the exception of the one session he received at WRCH on or about March 12, 2024.
  23. On May 7, 2024, Felix was transferred to Whitney Academy, an approved private residential special education program that is not operated by SEIS.

DISCUSSION

                Whether Felix’s “systemic claims” survive a Motion to Dismiss turns on the BSEA’s authority to hear claims that are pending concurrently before a court, and that have been brought on behalf of a class of students. As such, I review the standard for motions to dismiss, then turn to BSEA jurisdiction.

  1. Legal Standards
  1. 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, the hearing request must contain “factual ‘allegations plausibly suggesting (not merely consistent with)’ an entitlement to relief.”[9] In determining whether to grant such a motion, 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.”[10] These “[f]actual allegations must be enough to raise a right to relief above the speculative level.”[11] 

  1. BSEA Jurisdiction

To survive a motion to dismiss, the moving party must allege a claim over which the BSEA has jurisdiction. Under 20 U.S.C. § 1415(b)(6), BSEA jurisdiction extends to timely complaints filed by parents or school districts “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.”[12] The BSEA’s governing statute grants the bureau the authority to provide:

adjudicatory hearings, mediation and other forms of alternative dispute resolution . . . for resolution of disputes between and among parents, school districts, private schools and state agencies concerning: (i) any matter[13] relating to the identification, evaluation, education program or educational placement of a child with a disability or the provision of a free and appropriate public education to the child arising under this chapter and regulations.[14]

                DESE argues that dismissal of Felix’s “systemic claims” is appropriate because they are currently the subject of a court matter and because such claims are beyond the jurisdiction of the BSEA. I explore each of these grounds for dismissal below.

  1. BSEA jurisdiction over claims filed simultaneously in court

        Nothing in the BSEA Hearing Rules for Special Education Appeals addresses circumstances in which a claim is filed at the BSEA and in state or federal court at the same time, and guidance on this issue is absent from prior BSEA rulings and decisions. Courts, however, face such quandaries regularly.

        The doctrine of exhaustion generally governs how courts address situations where a matter comes before the court prior to be considered by the administrative agency with jurisdiction over the issue.[15] It requires litigants to pursue all available procedures within the agency and exhaust all methods before turning to court action.[16] The doctrine reflects the idea that agencies should have initial responsibility for matters that they have been charged to administer, and it becomes particularly relevant where “the action under review involves exercise of the agency’s discretionary power or when the agency proceedings in question allow the agency to apply its special expertise.”[17] Exhaustion is further intended to promote judicial and administrative efficiency by giving agencies the opportunity to correct their own mistakes, potentially avoiding “judicial controversy” and “piecemeal appeals,” and by providing a record for judicial consideration where a case survives administrative review.[18] These principles apply in the special education context to require exhaustion of IDEA-based claims seeking relief that is also available under the IDEA itself.[19]

                Courts have repeatedly held that statutes and court decisions say what they mean and mean what they say.[20] None of the many decisions that apply the doctrine of administrative exhaustion indicate that administrative agencies with jurisdiction over an issue ever ought to dismiss or stay the matter to permit a court to hear it. Rather, these cases hold that agencies have priority and should hear the issue first. Therefore, the doctrine of administrative exhaustion dictates that in situations where a claim is brought simultaneously before the BSEA and a court, the BSEA need not – and in fact, should not – dismiss it.[21]

  1. BSEA jurisdiction over claims filed on behalf of a class of students

                Several Hearing Officers have examined the language of the statutes and regulations governing the BSEA and concluded that they do not permit the BSEA to hear class action claims or grant systemic relief.[22] In a Ruling issued recently, Hearing Officer Marguerite Mitchell wrote, “As the BSEA’s enabling legislation explicitly references ‘the child’ in the singular rather than plural, it is clear from this statute that the BSEA is only able to consider cases and class on an individual student-specific basis, rather than cases or claims made on the behalf of a class of students.”[23] I agree that the BSEA is an agency of limited jurisdiction, and that there is nothing in state or federal law or in the BSEA Hearing Rules to suggest that the BSEA’s mandated function to hear and decide FAPE claims regarding individual students extends to or encompasses class action claims.[24]

                Although BSEA rulings and decisions have consistently held that the BSEA’s jurisdiction is limited to resolving disputes and providing relief for individual students,[25] this does not mean that the BSEA is categorically precluded from considering any systemic claims advanced by a parent or student. Because the BSEA’s charge is to ensure that individual students are provided a FAPE, even without the authority to issue systemic relief the BSEA may hear systemic claims to the extent that they contend that any alleged systemic failures contributed to the denial of a particular student’s right to a FAPE.[26]

  1. Analysis

                In the present matter, DESE argues that the pending Superior Court action regarding Felix’s systemic claims precludes the BSEA from hearing them, because allowing these claims to proceed simultaneously in two forums is wasteful in terms of judicial and administrative efficiency, and because it raises a risk of conflicting determinations. DESE’s point about administrative efficiency is not without merit, but the doctrine of exhaustion suggests that it is the BSEA and not the court that should hear the case, due to the administrative agency’s expertise regarding special education, IEPs, and FAPE. [27] Furthermore, DESE’s concern about potentially conflicting determinations arising from both the BSEA and the Superior Court entertaining Felix’s “systemic claims” is unlikely to materialize. The BSEA Hearing is scheduled for September 2024, whereas the court has established April 2026 as the date by which the case before it should be resolved.

                DESE further asserts that the BSEA lacks authority over systemic claims due to its limited jurisdiction. It is true that the BSEA cannot grant systemic relief.[28] However, Felix alleges that 603 CMR 26.06(9) interferes with DESE’s obligation to provide special education services to students, such as himself, who have disabilities and are confined in HOCs. He also contends that SEIS’s failure to provide direct special education services to students with disabilities confined in HOCs contributes to a deprivation of a FAPE, and that SEIS’s failure to create, maintain, supervise, and administer a system that provides a FAPE to students with disabilities who are confined in HOCs contributes to a deprivation of a FAPE. Therefore, to the extent that Felix’s arguments focus on the ways in which these systemic practices (and/or the absence of such systemic practices) contributed to the denial of his right to a FAPE during his incarceration in a HOC, the BSEA can hear these “systemic claims.”[29] I note, however, that any relief granted on these claims will be individual in nature, and as to Felix, only.

CONCLUSION

                For the reasons above, DESE’s Motion to Dismiss Systemic Claims in Hearing Request is hereby DENIED in part, insofar as Felix’s “systemic claims” are interpreted narrowly, in connection with his allegations that he has been deprived of a FAPE, and ALLOWED in part, insofar as these claims seek broader fact-finding and relief.

ORDER

                The matter will proceed to Hearing via a virtual platform on September 16, 17, and 18, 2024 on the following issues:

  1. Should the Hearing Officer enter an immediate order requiring SEIS to provide the services on the Student’s partially accepted 12/15/2023 to 12/14/2024 IEP (to wit: 342 minutes of Educational Services per day, 60 minutes of speech per week, and 30 minutes of counseling per week) at the Essex County House of Corrections?[30]
  2. Is the Student entitled to compensatory services due to the failure of SEIS to provide the services on the Student’s IEP since April 13, 2023?[31]
  3. Is SEIS required by M.G.L. c. 71B, § 11A to provide the Student direct special education services as stated on his last accepted IEP? If so, did SEIS fail to provide such services, thereby denying the Student a FAPE?
  4. To the extent SEIS is required to create, maintain, supervise, and administer a system that provides a FAPE to students with disabilities who are confined in Houses of Corrections and has failed to do so, has such failure contributed to the Student’s denial of a FAPE?
  5. Did DESE fail to meet its obligation, under M.G.L. c. 71B, § 11A, to provide special education services to the Student while he was confined in the county Houses of Correction, and if so, did the provisions of 603 CMR 28.06(9) contribute to such deprivation of a FAPE?
  6. What is the appropriate remedy for any deprivations or denials of a FAPE the Student has experienced?

By the Hearing Officer:[32]

   /s/  Amy Reichbach

Date:  July 29, 2024

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

[2] Minor changes have been made to the language of the claims for purposes of clarity and consistency.

[3] In May 2024, several weeks after he filed his Hearing Request, Felix was released from the Essex County House of Corrections (ECHC) and is currently attending a residential special education school. This claim has not been withdrawn, however, nor has the Department of Elementary and Secondary Education (DESE) moved to dismiss it; as such, I have included it for purposes of this Ruling.

[4] See note 3, supra.

[5] The factual statements contained herein are taken as true for purposes of this Ruling only. Some factual disparities exist in the parties’ records of Felix’s stays at and transfers between various state hospitals and correctional facilities, though these disputes do not impact the outcome of the instant Motion to Dismiss Systemic Claims.

[6] At this time, Felix was evaluated and found not competent to stand trial.

[7] Felix contends that he was admitted to the adolescent unit at WRCH and did not receive any educational services while he was there. According to DESE, on the WRCH adolescent unit DESE provides special education services through classes, but Felix was actually placed on the adult unit where he could not access those classes. Instead, SEIS arranged for Felix to meet 1:1 with a special education teacher during his time in the adult unit. According to DESE, on May 16 and 17, 2023, Felix refused to meet with the special education teacher and declined special education services at WRCH.

[8] According to Felix, though Haverhill had listed the special education teacher position in many employment databases, no teacher had been hired as of the date the Hearing Request was filed.

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

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

[11] Golchin v. Liberty Mut. Ins. Co., 460 Mass. 222, 223 (2011) (internal quotation marks and citations omitted).  

[12] See 34 C.F.R. 300.507(a)(1).

[13] Limited exceptions exist that do not apply here.

[14] M.G.L. c. 71B § 2A(a); see 603 CMR 28.08(3)(a).

[15] It is also relevant in situations where an action is filed simultaneously with the agency and a court.

[16] See Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50 (1938) (referring to “the long settled rule of judicial administration that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted”); seealso Halsey v. Fedcap Rehab. Servs., 95 F.4th 1, 11 (1st Cir. 2024) (noting that the exhaustion principle “requires a party to proceed in the administrative . . . arena until all possible administrative remedies are exhausted before initiating action in the courts” (quoting Cushing v. Smith, 457 A.2d 816, 821 (Me. 1983) (internal citation omitted)); Assuncao’s Case, 372 Mass. 6, 8 (1977) (“The requirement that parties exhaust their administrative remedies before seeking review in this court is not a mere procedural device to trap the unwary litigant; rather, it is a sound principle of law and jurisprudence aimed at preserving the integrity of both the administrative and judicial processes”). “Exceptions to the exhaustion requirement have been made when the administrative remedy is inadequate, when important novel, or recurrent issues are at stake, when the decision has public significance, or when the case reduces to a question of law.” Town of Hingham v. Dep’t of Hous. & Cmty. Dev., 451 Mass. 501, 509 (2008) (internal quotation marks and citation omitted).

[17] McCarthy v. Madigan, 503 U.S. 140, 145 (1992).

[18] See id.; see also Gill v. Bd. of Registration of Psych., 399 Mass. 724, 727 (1987) (“sound policy reasons” for requiring exhaustion of administrative remedies include “avoid[ing] the occurrence of untimely and piecemeal litigation”).

[19] See Perez v. Sturgis Public Schools, 598 U.S. 142, 147-48 (2023); Fry v. Napoleon Community Schools, 580 U.S. 154, 168 (2017); Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 60 (1st Cir. 2002).

[20] See Mathis v. United States, 579 U.S. 500, 514 (2016) (“a good rule of thumb for reading our decisions is that what they say and what they mean are one in the same”); Dodd v. United State, 545 U.S. 353, 357 (2005)(“we must presume that the legislature says in a statute what it means and means in a statute what it says there” (quoting Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253-54 (1992))).  

[21] See McCarthy,503 U.S. at 145; Gill, 399 Mass. at 727; Assuncao’s Case, 372 Mass. at 8.

[22] See In Re: Student and Quincy Public Schools and Department of Elementary and Secondary Education, BSEA # 2408249 (Mitchell, 2024) (In Re: Quincy and DESE); In Re: Holyoke Public Schools and Jay, BSEA # 1800619 (Oliver, 2018); In Re: Student v. Springfield Public Schools, BSEA # 1309716 (Oliver, 2013). See also In Re: Chicopee Public Schools, Mass. Dept. of Elementary & Secondary Education, BSEA # 1608986 (Berman, 2017) (In Re: Chicopee Public Schools and DESE) (discussing reasoning in Springfield Public Schools, supra).

[23] In Re: Quincy and DESE.

[24] See id. (“…rather than having its jurisdiction expressly excluded by law, the BSEA’s jurisdiction must be explicitly provided for by statute”).

[25] See id.; see also In Re: Holyoke Public Schools (dismissing requests for class certification and systemic relief due to the BSEA’s narrow jurisdiction, as laid out in its governing statutes and regulations, and the BSEA’s lack of experience, expertise, and institutional capacity for engaging in class-wide fact finding); In Re: Chicopee Public Schools and DESE (dismissing claims for class certification and class-wide relief due to the BSEA’s lack of jurisdiction over systemic claims, because nothing within the BSEA’s grants of authority permit it to go beyond resolving individual disputes).

[26] See Roe v. Johnson, CIVIL ACTION NO. 11-11858-RWZ, 2012 U.S. Dist. LEXIS 115918, at *10 (D. Mass. Aug. 17, 2012) (requiring exhaustion of plaintiff’s class-wide claims for injunctive relief, on this basis); see also In Re: Greater New Bedford Regional Voc. Tech., BSEA # 1308227 (Crane, 2013) (recognizing that any findings and relief the Hearing Officer might order “are limited to what is necessary to determine whether [the school district] in the past has complied with (and whether [it] currently and prospectively is complying with) state and federal special education laws with respect to Student; and if not, what relief should be ordered,” and continuing, “However, this does not necessarily preclude my consideration of alleged systemic policies or practices.”); In Re: Boston Public Schools, BSEA # 114676 (Crane, 2011) (declining to dismiss claims that school district has certain systemic policies or practices, and that these policies or practices caused or contributed to Student’s being denied a FAPE, because “these systemic claims are relevant to” resolution of Student’s individual claims, and therefore fall within the Hearing Officer’s authority to determine whether Student was denied a FAPE).

[27] See McCarthy, 503 U.S. at 145 (“exhaustion concerns apply with particular force when the action under review involves exercise of the agency’s discretionary power, or when the agency proceedings in question allow the agency to apply its special expertise”).

[28] See Roe, 2012 U.S. Dist. LEXIS 115918, at *10 (clarifying that the BSEA lacks jurisdiction to grant systemic relief); seealso In Re: Boston Public Schools (“The BSEA’s jurisdiction is limited to what can be found within state and the federal special education laws and their implementing regulations…I can find nothing within these grants of authority that would permit me, as a BSEA Hearing Officer, to go further than resolving the dispute between Student and Boston….With respect to Parents’ request that I order systemic relief, I find that I have no authority to do so”).

[29] See In Re: Greater New Bedford Regional Voc. Tech.; In Re: Boston Public Schools; see also Roe, 2012 U.S. Dist. LEXIS 115918, at *11 (requiring exhaustion of claims regarding systemic policies and practices because “BSEA consideration of plaintiff’s claims would develop a factual record on the issues of whether the alleged systemic policies or practices in fact exist, and, if so, whether such policies contributed to or caused denial of plaintiff’s right to FAPE”); In Re: Chicopee Public Schools and DESE (“As such, if the evidence supports a finding that Student has been denied a FAPE, I may consider whether policies and procedures of DESE and/or CPS have contributed to this denial”).

[30] As Felix has been released from the ECHOC and is currently placed at a residential special education school, this issue may well be moot, but to date it has not been withdrawn.

[31] An end date may be added to this claim, for the reasons described in note 30, supra.

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

Updated on July 30, 2024

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