In Re: Isa[1] BSEA #25-00461

COMMONWEALTH OF MASSACHUSETTS

DIVISION OF ADMINISTRATIVE LAW APPEALS

BUREAU OF SPECIAL EDUCATION APPEALS

In Re: Isa[1] 

BSEA #25-00461

RULING ON PARENTS’ MOTION TO ORDER A TEAM MEETING AND REIMBURSE/FUND PRIVATE PLACEMENT

          This matter comes before the Hearing Officer on the Motion to Order a Team Meeting and Reimburse/Fund Private Placement (Motion) filed by Parents on October 7, 2024, following four days of Hearing. The instant Motion, which Parents filed after they formally rested their case on September 25, 2024, seeks an Order for reimbursement from Hingham Public Schools (Hingham, or the District) for Parents’ unilateral placement of Isa at the Inly School (Inly) during the 2023-2024 school year; funding for her unilateral placement at Inly for the current 2024-2025 school year; and an Order from the Bureau of Special Education Appeals (BSEA) that Isa’s Team “convene and properly discuss” an Educational Assessment that was conducted in March 2023. In their Motion, which was accompanied by an Educational Assessment A and B dated March 30, 2023, Isa’s spring 2024 progress report from Inly, and case law, Parents argue grounds on which they should prevail.

As the undersigned Hearing Officer explained in an email to the parties shortly after Parents’ Motion was filed, because said Motion seeks to add a claim beyond those that were outlined in a Pre-Hearing Order and reviewed at the beginning of the Hearing, it is being treated as a mid-hearing Motion to Amend the Hearing Request.[2]

On October 11, 2024, Hingham filed its Opposition to Parents’ Motion to Order a Team Meeting and Amend the Hearing Request, arguing that 20 U.S.C. §1415(c)(E) sets forth the circumstances in which a hearing request may be amended, none of which applies here.[3] Moreover, under Rule I(B) of the BSEA Hearing Rules for Special Education (BSEA Hearing Rules), the party filing a hearing request may not raise issues at the hearing that were not raised in the hearing request absent the opposing party’s agreement or an amendment of the hearing requestin accordance with state and federal law. Because Parents are statutorily prohibited from amending their Hearing Request, their Motion must be denied.

Neither party requested a hearing on the Motion, and as formal oral argument would not advance my understanding of the issues involved, I am ruling on the Motion without a hearing.[4]  For the reasons set forth below, Parents’ Motion is DENIED.

I.       FACTUAL BACKGROUND AND RELEVANT PROCEDURAL HISTORY

The factual and procedural history of this matter is reviewed in detail in the Ruling on Parents’ Motion to Reconsider and Parents’ Motion to Vacate or Quash Subpoenas issued on September 17, 2024; the Ruling on Hingham Public Schools’ Motion to Compel, Hingham Public Schools’ Motion to Postpone, and Parents’ “Emergency Motion” to Delay Submission of Documents issued on September 19, 2024; and the Ruling on Hingham Public Schools’ Motion for Directed Verdict, issued on October 22, 2024.

The issues for Hearing were discussed during a Pre-Hearing Conference on September 12, 2024 and set forth in a Pre-Hearing Order issued on September 17, 2024. The parties were invited to share any questions or concerns or request changes in writing prior to close of business on September 18, 2024. Neither party did so. The issues for Hearing were also reviewed at the commencement of the Hearing on September 21, 2024. These issues are as follows:

  1. Whether Hingham violated Isa’s right to a FAPE by failing to implement a fully accepted, expired IEP during the 2022-2023 school year, up to and including February 28, 2023;
  2. Whether Hingham failed to propose IEPs reasonably calculated to provide Isa with a FAPE during the 2022-2023 school year beginning February 28, 2023, and if so, whether Parents are entitled to compensatory services;
  3. Whether Hingham failed to propose IEPs reasonably calculated to provide Isa with a FAPE during the 2023-2024 school year; and
    1. If so, whether the Inly School is appropriate for Isa; and
    2. If so, whether Parents are entitled to reimbursement for their placement of Isa at Inly; and/or
  4. Whether Hingham committed procedural violations during the relevant time period that amounted to a deprivation of a FAPE.

Parents represented themselves at the time they filed their Hearing Request and through the fourth day of Hearing, at which time they requested a continuance to secure representation. Their Advocate entered a Notice of Appearance on October 7, 2024, and the instant Motion followed.

  1. DISCUSSION
  1. Legal Standard

Should the moving party in a BSEA proceeding wish to raise issues at the hearing that were not raised in its hearing request, the moving party must either obtain the opposing party’s permission to do so or move to amend its hearing request “in accordance with state and federal law.”[5] BSEA Hearing Rule I(G) governs the circumstances in which a Motion to Amend may be allowed. Consistent with 20 U.S.C. §1415(c)(2)(E), BSEA Hearing Rule I(G) permits the moving party to amend a hearing request under two circumstances:

1.  In response to a Hearing Officer’s determination that a hearing request is insufficient [pursuant to a Sufficiency Challenge under BSEA Hearing Rule I(E)], the moving party may file an amended hearing request within fourteen (14) calendar days of the date of the Hearing Officer’s determination. 

2. If the other party consents in writing, or the Hearing Officer grants permission.  (The Hearing Officer may not grant such permission later than five (5) calendar days before the start of the hearing.)[6] 

  1. Application of Legal Standard

          In this case, only the second circumstance must be examined, as Hingham did not contend, nor have I found, that Parents’ Hearing Request was insufficient. At the time Parents filed their Motion on October 7, 2024, four days of hearing had already occurred, and Parents had rested their case. Parents had ample opportunity to amend their Hearing Request to add a claim regarding the 2024-2025 school year at any time after it was filed on or about July 11, 2024, and they were permitted to raise concerns in response to the Pre-Hearing Order issued on September 17, 2024 that explicitly listed the issues for Hearing. As Hingham correctly asserts, the time period during which the Hearing Officer may grant permission for Parents to amend their Hearing Request has passed.[7] The District has not consented in writing to an amendment. There is, therefore, no mechanism that would permit Parents to amend their Hearing Request once the Hearing has commencedto add a new claim, over the District’s objection, seeking funding and/or reimbursement for their unilateral placement of Isa at Inly during the 2024-2025 school year.

          To the extent Parents’ Motion seeks a finding that Hingham failed to provide to Parents an Educational Assessment of Isa in advance of a Team meeting in March 2023 and/or failed to discuss that evaluation at the Team meeting, these allegations may be subsumed under Claim D, which alleges procedural violations. Should I find that such violation occurred and that it deprived Isa of a free appropriate public education, the IDEA affords me the discretion to fashion appropriate relief.

          To the extent Parents’ Motion seeks an Order that Hingham reimburse Parents for their unilateral placement of Isa at Inly for the 2023-2024 school year, this claim is the subject of the Hearing in the matter and will be resolved by Decision.

  1. CONCLUSION

Upon consideration of Parents’ Motion to Order a Team Meeting and Reimburse/Fund Private Placement and Hingham Public Schools’ Opposition thereto, I find that there is no basis in the law that permits Parents’ Motion to be granted.

ORDER

Parents’ Motion to Order a Team Meeting and Reimburse/Fund Private Placement is hereby DENIED.

By the Hearing Officer:[8]

      /s/  Amy M. Reichbach

Dated: October 23, 2024  


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

[2] To the extent Parents seek an Order that Hingham convene a Team meeting to review the Educational Assessment prepared for Isa in March 2023, such remedy was not specifically requested by Parents at the time they filed their Hearing Request, nor were Parents’ claims regarding Hingham’s failure to provide the Educational Assessment to Parents in advance of, and/or discuss that assessment during, a Team meeting in March 2023 specifically alleged. Moreover, as the undersigned Hearing Officer explained in the email sent to the parties the day the instant Motion was filed, to the extent Parents’ Motion seeks a Ruling that the District must reimburse Parents for tuition at Inly during the 2023-2024 school year, that issue is currently being litigated at Hearing and will be resolved by the Decision.

[3] It is 20 U.S.C. §1415(c)(2)(E) that governs amendments to hearingrequests.

[4] Rule VII(D) of the BSEA Hearing Rules for Special Education Appeals (BSEA Hearing Rules) provides in relevant part: “A Hearing Officer may rule on a motion without holding a hearing if: delay would seriously injure a party; testimony or oral argument would not advance the Hearing Officer’s understanding of the issues involved; or a ruling without a hearing would best serve the public interest.”

[5] BSEA Hearing Rule I(B).

[6] BSEA Hearing Rule I(G); see 20 U.S.C. §1415(c)(2)(E).

[7] See BSEA Hearing Rule I(G) (permitting Hearing Officer to grant permission for a Hearing Request to be amended not later than five days before the commencement of the Hearing); see also 20 U.S.C. §1415(c)(2)(E) (same).

[8] The undersigned Hearing Officer is grateful for the diligent assistance of legal intern Sophie Rudloff in the preparation of this Ruling.

Updated on October 23, 2024

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