COMMONWEALTH OF MASSACHUSETTS
DIVISION OF ADMINISTRATIVE LAW APPEALS
Bureau of Special Education Appeals
In Re: North Andover Public Schools v. DESE, Bedford Public Schools & Virginia Beach City Public Schools
BSEA # 24-00238
RULING ON MOTION TO DISMISS OF VIRGINIA BEACH CITY PUBLIC SCHOOLS
On July 12, 2023, the North Andover Public Schools (“North Andover”), filed a request for hearing in which it challenged the Department of Elementary and Secondary Education’s (DESE’s) May 24, 2023 Assignment of School District Responsibility to North Andover for Student’s 2022-2023 school year placement at the Evergreen Center School (“Evergreen”). In its hearing request, North Andover asserts that the costs of Student’s residential educational placement at Evergreen for August 2022 to February 2023 were the responsibility of the Virginia Beach City Public Schools (“VBCPS”) because Parent had moved to Virginia Beach in August 2022. North Andover further claims that the Bedford Public Schools (“Bedford”) became responsible for these costs as of February 3, 2023, on which date a resident of Bedford was appointed as Student’s legal guardian. 
North Andover requested, without objection, that the BSEA issue a decision without a hearing. This request was granted, and the parties have been directed to submit all documents for consideration as a basis for the decision by August 21, 2023.
On July 20, 2023, VBCPS filed a Motion to Dismiss the hearing request, stating that it was improperly included as a party. In pertinent part, VBCPS argues that it was not a party to the underlying action (DESE’s assignment of school district responsibility to North Andover for the period at issue), that Student had never been enrolled or attempted to be enrolled in the VBCPS, that VBCPS had no knowledge of Student, and that the BSEA lacks jurisdiction to assign financial responsibility to VBCPS.
On July 26, 2023, North Andover filed a Response to the Motion of VBCPS in which it objected to dismissal of North Andover’s hearing request in its entirety but stated that the District “does not oppose the dismissal of Virginia Beach as a party to the matter, upon proper motion by Virginia Beach.” To date, neither Bedford nor DESE has filed a response to VBCPS’ Motion.
No party has requested a hearing on this Motion, and I find that neither an evidentiary hearing nor oral argument would be necessary or helpful in ruling same. Upon review of the parties’ submissions in light of applicable law, I conclude that the Motion to Dismiss of VBCPS should be GRANTED insofar as it seeks dismissal of VBCPS as a party in this matter but DENIED insofar as it may seek dismissal of North Andover’s hearing request in its entirety.
The criteria for allowing dismissal of a hearing request before the BSEA are well-articulated in North Andover’s Response and will not be reiterated at length here. In brief, North Andover has asserted a claim for relief under 603 CMR 28.10(9), which authorizes school districts to contest DESE determinations of school district responsibility by filing a hearing request with the BSEA and has made sufficient plausible factual allegations in support of its claim to survive a motion to dismiss for failure to state a claim. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 6778 (2009). (Internal citations omitted). As such, North Andover’s hearing request should not be dismissed in its entirety.
On the other hand, VBCPS has asserted that the BSEA lacks jurisdiction to order it—a school district outside of Massachusetts in which Student has never been enrolled–to assume financial responsibility for Student’s Evergreen placement during the period in question. Neither North Andover nor the other parties has presented any legal authority to contest this assertion or has otherwise objected to VBCPS being dismissed as a party.  Rule XVI.B.1 of the Hearing Rules for Special Education Appeals provides that upon request of a party, a matter may be dismissed for lack of jurisdiction. As such, dismissal of VBCPC as a party in this matter is appropriate.
CONCLUSION AND ORDER
The Motion to Dismiss of the Virginia Beach City Public Schools is GRANTED in part and DENIED in part; specifically:
- Insofar as the Motion seeks to dismiss VBCPS as a party in this matter, the Motion is GRANTED.
- Insofar as the Motion seeks to dismiss North Andover’s hearing request in its entirety, the Motion is DENIED. North Andover may pursue its claims with respect to the remaining parties, i.e., Bedford Public Schools and DESE.
By the Hearing Officer,
/s/ Sara Berman
Dated: August 18, 2023
 Student turned 18 in or about July 2022.
 North Andover’s Response states that dismissal of VBCPS could be granted upon filing of a “proper motion;’ however, I find that the instant July 20, 2023 Motion of VBCPS provides sufficient basis for dismissal of it as a party.