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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 HINGHAM PUBLIC SCHOOLS’ MOTION TO COMPEL, HINGHAM PUBLIC SCHOOLS’ MOTION TO POSTPONE, AND PARENTS’ “EMERGENCY MOTION” TO DELAY SUBMISSION OF DOCUMENTS

This matter comes before the Hearing Officer on two motions filed by Hingham Public Schools (Hingham or the District), and one motion filed by Parents, in connection with a Hearing scheduled to begin on September 23, 2024. As formal oral argument would not advance my understanding of the issues involved, I am ruling on all motions without a hearing.[2] For the reasons set forth below, Hingham’s Motion to Compel is hereby ALLOWED; Hingham’s Motion to Postpone is hereby DENIED; and Parents’ Emergency Motion to Delay Submission of Documents is DENIED as moot.

  1. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The factual and procedural history of this matter is reviewed in detail in my Ruling on Parents’ Motion to Reconsider and Parents’ Motion to Vacate or Quash Subpoenas (Ruling), issued September on 17, 2024. I discuss it here only as necessary context for the instant motions.

On July 11, 2024, Parents filed a Hearing Request against Hingham, seeking reimbursement for the unilateral placement of Isa at Inly, a private Montessori school that is not approved by the Massachusetts Department of Education, during the 2023-2024 school year. The Hearing was scheduled for August 15, 2024.

On July 22, 2024, the District filed its Response to Parents’ Hearing Request, asserting that the Individualized Education Programs (IEPs) and placements it has proposed for Isa during the relevant time period have been reasonably calculated to provide her with a free appropriate public education (FAPE), and that when Parents withdrew her from the District on or about August 18, 2023, they failed to notify Hingham of their intention to seek public funding for their unilateral placement. As such, Parents are not entitled to public funding for their placement of Isa at Inly, and their request for reimbursement should be denied.

On August 6, 2024, after a Conference Call wherein Parents indicated their agreement to a short postponement requested by the District, the Hearing was postponed for good cause to September 23, 24, and 25, 2024, and a Pre-Hearing Conference was scheduled for September 12, 2024.

In the meantime, on or about July 31, 2024, Hingham served Parents its First Set of Interrogatories, consisting of 18 distinct interrogatories, and its First Request for Production of Documents, which enumerated 23 categories of documents sought (together, “discovery requests”).

On or about August 5, 2024, the District requested that the Bureau of Special Education Appeals (BSEA) issue subpoenas duces tecum for documents from the Inly School, Maureen Brown of Ask the Advocate, LLC, and Dr. Regan Summers, Psy.D. of the Learning and Emotional Assessment Program at Massachusetts General Hospital (MGH). The BSEA issued these subpoenas on or about August 12, 2024. On September 4, 2024, Hingham requested that the BSEA issue additional subpoenas duces tecum for documents to Scituate Public Schools, the Landmark School, and MGH, and the BSEA issued these subpoenas the same day. Since that date, Hingham has also requested, and the BSEA has issued, subpoenas duces tecum for Emily Clayton (requested and issued on September 12, 2024), Alanna Thornton (requested and issued on September 13, 2024) and the Accord School (requested and issued on September 13, 2024).[3]

On September 11, 2024,[4] Hingham filed the instant Motion to Compel Discovery Responses from Parents (Motion to Compel), accompanied by two exhibits: its discovery requests, and Parents’ Hearing Request. The District asserts that Parents’ responses to its discovery requests were due on August 31, 2024, and that Parents have not filed objections or a motion for a protective order within 10 days of the date of service, nor have they served answers to interrogatories nor responses to the District’s request for production of documents. Hingham argues that as witness lists and exhibits are due on September 16, 2024, the absence of such answers and responses would prejudice the District in the preparation of its defense. Hingham requested that the BSEA order Parents to “answer the interrogatories and produce the requested documents without further delay,” and noted that absent receipt of these discovery responses, it might seek to exclude any testimony from an expert witness not identified in a timely matter, request that the Hearing Officer preclude the submission of any information requested in the interrogatories that was not provided to the District in a timely manner, and/or move for a postponement of the hearing dates.

On September 13, 2024, the District filed a Motion to Postpone the Hearing. As grounds for its Motion to Postpone, the District argues that it has not yet received important information through its discovery requests or through the issued subpoenas duces tecum. Specifically, Hingham contends that MGH has communicated that it could take up to 30 days for the District to receive records responsive to the limited parental consent for release of information provided to MGH on September 13, 2024, after the District had received the signed release from Parents the same day.[5] Although Counsel for the Inly School had promised documents responsive to the District’s subpoena, which was served in August, those records had not yet been provided at the time Hingham filed its Motion to Postpone. Moreover, the District had not yet received responses to subpoenas issued on September 12 and 13, 2024, which had been sought on those dates, and which Hingham had requested based on information it had received from Parents regarding Isa’s providers between September 11 and 13, 2024. Hingham further asserts that outstanding discovery issues remain from Parents’ responses to its Request for Production of Documents and Answers to Interrogatories, and that it will “endeavor to resolve any questions directly with the Parent prior to requesting the Bureau’s intervention in response to the District’s Motion to Compel.”

On September 16, 2024, Parents filed an Opposition to the District’s Motion to Postpone, arguing that they opposed any postponement of the Hearing as they had “diligently adhered to all requirements set forth by the district,” and that “it appears the district is engaging in a fishing expedition due to a lack of a solid defense.” Specifically, Parents assert that if Hingham had conducted a resolution meeting, the District would have been able “to retain all pertinent facts and information moving forward.” They contend that Hingham has “manipulated the situation” to its advantage, as Parents have raised inquiries regarding various matters and requested that conference calls be recorded, yet the District had refused.[6] Furthermore, according to Parents, the District has the information it requires from MGH in its possession through Isa’s records, and only issued a subpoena duces tecum to MGH as a “delaying tactic.” Finally, in opposing postponement, Parents repeated their belief that Hingham has used mediation and the due process hearing “as stalling tactics due to their lack of defense.”

Also on September 16, 2024, Parents filed an Emergency Motion to Postpone Exhibits (Emergency Motion), seeking to postpone the submission of exhibits that were due that day, until after the issuance of a Ruling on the District’s Motion to Postpone.

On September 16, 2024, the Hearing Officer informed the parties by email that as the District’s postponement request had been received late in the day on Friday, September 13, 2024, and Parents’ Emergency Motion had just been filed, they would be expected to file their exhibits and witness lists by close of business on September 16, 2024, in accordance with Rule VIII(A) of the Hearing Rules for Special Education Appeals (BSEA Hearing Rules) and the Scheduling Orders issued on August 6 and 7, 2024.[7]  

On September 17, 2024, the undersigned Hearing Officer issued the Ruling referenced in note 3, supra,and consistent with a separate Pre-Hearing Order issued to the parties the same day, the issues for Hearing were delineated 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.

On September 18, 2024, Parents filed their Opposition to the District’s Motion to Compel, arguing that they had provided all available information to the District; that Hingham did not conduct a resolution meeting, “which should have clarified many issues;” that District personnel were “aware of all relevant information” but had failed to provide it to their attorneys; and that the information sought by the District from MGH “has been available since the initiation of the due process request,” particularly given the District’s knowledge of MGH’s involvement with Isa (MGH had been referenced in her IEP). Finally, Parents assert that the information sought by the District by way of its Motion to Compel does not pertain to this matter, which they characterize as “fundamentally concern[ing] how public schools implement . . . IEPs and whether the student receives appropriate services, rather than the student’s diagnosis.”

In response to the Hearing Officer’s email to both parties, Hingham confirmed on September 18, 2024 that the parties had been unable to resolve outstanding discovery disputes. Specifically, the District contends that Parents have not provided Hingham with audio and/or video recordings they had referenced during the Pre-Hearing Conference, and that although Parents have provided the District with some information regarding their payments to Inly, that information was not identical to that which Inly had provided to Hingham regarding such payments. Hingham also asserts that it has not received information responsive to a subpoena issued on September 13, 2024 to Isa’s therapist, nor has it received information from MGH responsive to its subpoena duces tecum and the limited release signed by Parents that Hingham provided to MGH on September 16, 2024.

  1. DISCUSSION 
    1. Motion to Compel
      1. Legal Standard

BSEA Hearing Rule V governs discovery in the context of BSEA hearings.[8] Pursuant to  Rule V(B), discovery requests may be made in the form of interrogatories, written requests for records, or depositions. The party upon whom the request is served has 30 days to respond, unless a shorter or longer period of time is established by the Hearing Officer.[9] The party upon whom a request for discovery is served may, within 10 calendar days of service of the request, file with the Hearing Officer objections to the request or move for a protective order.[10] If a party does not receive some or all of the discovery responses or answers it requested, that party may file a Motion for an Order Compelling Discovery.[11]

  1. Application of Legal Standard

At the time the District filed its Motion to Compel (September 11, 2024), Parents had not responded to Hingham’s First Set of Interrogatories or its First Request for Production of Documents, although responses to both were due on August 31, 2024.[12] Parents had neither filed an objection, nor had they moved for a protective order with respect to the District’s discovery requests.[13] Instead, Parents ignored Hingham’s requests for information or responded informally by asserting that the information sought by the District is irrelevant, already in its possession, or would have been obtained by Hingham had it conducted a resolution session.

Whether information sought by one party to a BSEA proceeding from the other through discovery is relevant is not something to be determined by the party itself.[14] If Parents believed the information Hingham requested was irrelevant to the issues before the BSEA, they should have sought such a determination from the Hearing Officer by way of filing a timely objection to the District’s discovery requests or timely moving for a protective order.[15] Moreover, Parents’ assertion that Isa’s diagnosis is irrelevant to the issues for Hearing, including whether Hingham has proposed IEPs that are reasonably calculated to provide her with a FAPE, is erroneous.[16]

Hingham’s Motion to Compel is hereby ALLOWED. Parents are ordered to provide all outstanding discovery to the District by close of business on September 20, 2024.[17] Given that the Hearing is now a few days away, Hingham will be allowed to move to introduce additional exhibits not filed five business days prior to the commencement of the Hearing that consist of documents received in any discovery responses produced by Parents in response to this Ruling.[18] I will also give serious consideration to any motion by Hingham to prohibit the introduction by Parents of evidence that should have been provided to the District in response to its discovery requests, as well as to evidence derived therefrom.

Moreover, it has come to my attention, through emails between the parties on which I have been copied, that the information Parents have provided to Hingham regarding the amount of tuition they paid to Inly for Isa during the 2023-2024 school year has been internally inconsistent and may differ from the information Inly provided directly to Hingham regarding this amount. Because Parents seek reimbursement for Inly through public funds, this information is essential to their case. Parents are hereby ordered to supplement their exhibits, prior to the close of the evidence on the last day of Hearing, with a document produced by Inly reflecting the sum of all tuition and fees for the 2023-2024 school year paid by Parents to Inly for Isa.[19] This document must be accompanied by an affidavit signed by a member of the Inly School administration, under pains and penalties of perjury. Should Parents fail to comply with the required supplemental submission to their exhibits, I will give serious consideration to a motion by Hingham to exclude any financial payment information that Parents produce in the Hearing regarding tuition and fees paid to Inly for Isa for the 2023-2024 school year.

  1. Motion to Postpone

In addition to incomplete discovery, Hingham argues that the absence of information it has yet to receive in response to its subpoenas duces tecum to Inly, Ms. Clayton, the Accord School, Ms. Thornton, and MGH, as well as MGH’s failure to provide requested records upon receiving Parents’ limited release, will prejudice the District substantially in its defense against Parents’ claims. The District, therefore, seeks postponement of the Hearing to permit it time to pursue enforcement of its subpoena as to MGH, on an unknown timeline, and to receive anticipated records from the other non-parties.[20] As explained above, Parents oppose the District’s request to postpone the Hearing, asserting that the District already has all relevant information in its possession and that to the extent Hingham seeks information from MGH, it should have pursued that information at an earlier juncture. Moreover, except for their agreement in July to a brief postponement of the Hearing, Parents have strenuously opposed any continuance and have documented such opposition consistently.[21]

  1. Legal Standard

BSEA Hearing Rule III governs requests for postponement. Pursuant to BSEA Hearing Rule III(A)(1), except in extraordinary circumstances, the BSEA must receive a party’s request to postpone a hearing in writing at least six business days before the scheduled hearing date. The Hearing Officer may grant this request for good cause.[22] The decision whether to postpone a hearing is within the discretion of the Hearing Officer, who must give serious consideration to opposition to a request.[23]

  1. Application of Legal Standard

Although the information Hingham seeks (and argues that the District will be prejudiced by its absence) may well relate to a matter in question in the proceeding, Hingham did not pursue affirmative steps to procure much of this information until recently. With respect to the subpoenas issued to Ms. Clayton, the Accord School, and Ms. Thornton on September 12 and 13, 2024, it is not surprising that Hingham had not received such information by September 16, 2024. The District also did not request that a subpoena duces tecum be issued to MGH until September 4, 2024 and did not file its action for enforcement of that subpoena until one week before the commencement of the Hearing. At this time there is no indication as to when the Superior Court will hear the enforcement matter. Thus, I do not find that good cause exists to grant a postponement, particularly over the objection of the moving party in this matter. I note, however, that I will be open to any argument offered by Hingham that Parents’ failure to timely respond to its discovery requests prevented the District from requesting subpoenas duces tecum to Ms. Clayton, the Accord School, and Ms. Thornton at an earlier date, and, as such, I may exclude any evidence Parents offer that is arguably derived from these sources.

The District’s Motion to Postpone is DENIED. As noted above, however, to the extent Hingham wishes to amend its exhibit book to reflect any information provided by Parents in response to Hingham’s discovery requests and/or any information received in response to subpoenas duces tecum after September 13, 2024, it may file a motion to do so, and I will give any such motion serious consideration.

  1. Emergency Motion

As the parties both filed exhibits and witness lists before close of business on September 16, 2024, in accordance with BSEA Hearing Rule VI(C) and the Scheduling Orders issued in this case, Parents’ Emergency Motion ismoot and, thus, is DENIED.

  1. CONCLUSION

Upon consideration of Hingham’s Motion to Compel and Hingham’s Motion to Postpone, Parents’ Oppositions thereto, and the written arguments of the parties, I find that Hingham is entitled to an Order compelling Parents to provide any outstanding discovery by close of business on September 20, 2024, but that the District has not shown good cause to postpone the Hearing over Parents’ objection. I find, further, that Parents’ Emergency Motion is moot.

ORDER

  1. Hingham’s Motion to Compel Discovery Responses from Parents is hereby ALLOWED. Parents are hereby ordered to provide any outstanding discovery by close of business on September 20, 2024. The District may move to submit additional exhibits derived from untimely-provided discovery and/or information received pursuant to any outstanding subpoenas duces tecum. The District may also move to prohibit the introduction of evidence by Parents that should have been provided to the District in response to its discovery requests, as well as to evidence derived therefrom.

Parents are ordered to supplement their exhibits relating to their payments of tuition and fees to for Isa to Inly for the 2023-2024 school year, consistent with this Ruling. The District may move to exclude any financial information produced by Parents, through testimony and/or documents, relating to tuition and fees paid to Inly for Isa for 2023-2024 school year, should Parents fail to supplement their exhibits as ordered.

  1. Hingham’s Motion to Postpone the Hearing is hereby DENIED. The matter will proceed to a Hearing via an agreed-upon virtual platform, on September 23, 24, and 25, 2024. The Hearing will be public, pursuant to Parents’ request.
  2. Parents’ Emergency Motion to Postpone Exhibits is hereby DENIED as moot.

By the Hearing Officer:[24]

/s/  Amy M. Reichbach

Dated: September 19, 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] BSEA Hearing Rule VI(D) 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.”

[3] On September 5, 2024, Parents filed a Motion to Quash Subpoenas (Motion to Quash), applicable to all subpoenas previously requested, and on September 9, 2024, they supplemented this Motion to Quash with an additional “emergency motion.” On September 12, 2024, Hingham filed its Opposition to Parents’ Motion to Quash. On September 17, 2024, the undersigned Hearing Officer issued a Ruling on Parents’ Motion to Reconsider and Parents’ Motion to Vacate or Quash Subpoenas, which allowed, in part, and denied in part, Parents’ Motion to Quash. This Ruling also denied Parents’ request for reconsideration of an Order issued August 7, 2024; the August 7, 2024 Order had denied Parents’ request to reverse the postponement of the Hearing that had been granted on August 6, 2024.

[4] As this document was filed after 5:00 PM on September 10, 2024, its operative date is

September 11, 2024. See 801 CMR 1.01(4)(a).

[5] Hingham also indicated that it had filed an Application for an Order to Enforce Subpoena issued to Massachusetts General Hospital (MGH) in Superior Court, pursuant to M.G.L. c. 30A, § 12(5), on September 13, 2024, but had no information as to when the District would be heard on this motion.

[6] This is inaccurate. On or about August 8, in an email, and on or about August 26, 2024, by way of a formal written Ruling, the parties were both informed that the undersigned Hearing Officer would not permit the recording of conference calls.

[7] Under BSEA Hearing Rule VIII(A), all proposed exhibits (documents to be introduced) and witness lists (a list of the witnesses to be called at the hearing) must be received by the opposing party and the Hearing Officer at least five business days prior to the hearing unless otherwise allowed by the Hearing Officer.

[8] “In addressing discovery issues, the BSEA is [also] guided by the Massachusetts and Federal Rules of Civil Procedure and the Formal Standard Adjudicatory Rules of Practice and Procedure, to the extent they are not modified by the BSEA Hearing Rules.” In Re: Student & Boston Public Schools, BSEA #2301267 (Mitchell, 2023)

[9] See BSEA Hearing Rule V(B).

[10] See BSEA Hearing Rule V(C).

[11] See, e.g., 801 CMR 1.01(8)(i) (permitting a party to file a motion to compel discovery if a discovery request is not honored, or only partially honored, or interrogatories are not fully answered); Fed. R. Civ. P. 37(a)(1) (permitting a party, upon notice to other parties and all affected persons, to move for an order compelling discovery); In Re: Student v. Manchester-Essex Regional School District, BSEA #2403782 (Kantor Nir, 2024) (referencing and applying these rules); In Re: Student & Boston Public Schools (same).

[12] See BSEA Hearing Rule V(B).

[13] See BSEA Hearing Rule V(C).

[14] See Commonwealth v. Rodriguez, 91 Mass. App. Ct. 1113, *4 (2017) (“The determination whether evidence is legally relevant is within the discretion of the trial judge” (quoting Commonwealth v Chasson, 383 Mass. 183, 187 (1981))); O’Brien v. Am. Med. Response of Mass., Inc., 2013 WL 7760826 at *1, 31 Mass. L. Rep. 495 (Mass. Sup. Ct. 2013) (“A party may not (a) withhold documents, (b) arrogate to itself the role as sole arbiter of the document’s admissibility, and (c) then use its own self-serving inadmissibility ruling as an excuse or pretext to continue to withhold the documents as irrelevant).

[15] See BSEA Hearing Rule V(C).

[16] See Endrew F. ex rel. Joseph F. v. Douglas Cnty. Reg. Sch. Dist., 580 U.S. 386, 399 (2017) (“To meet its substantive obligation under the IDEA, a [school district] must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances”). Such circumstances include the child’s diagnoses. See In Re: Preston v. Nashoba Regional School District, BSEA #2004002 (Reichbach, 2020) (“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”).

[17] It appears that at least some of the requested discovery may have been provided between the date of Hingham’s filing and the present.

[18] See BSEA Hearing Rule VIII(A).

[19] See BSEA Hearing Rule IX(C)((6) (“The Hearing Officer may require any party to submit additional evidence on any relevant matter”) and Hearing Rule IX(C)(1) (“At the hearing, the Hearing Officer may permit or request the introduction of additional documentary evidence where no prejudice would result to either party”).

[20] Additionally, as the District has now provided MGH with a limited release, it is unclear whether an enforcement action against MGH based on the subpoena duces tecum remains viable at this time.

[21] This opposition includes Parents’ subsequent emails after the issuance of the postponement Order on August 6, 2024, indicating their continued objection to the initial postponement.

[22] See BSEA Hearing Rule III(A)(3).

[23] See BSEA Hearing Rule III(A)(1).

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

Updated on September 23, 2024

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