COMMONWEALTH OF MASSACHUSETTS
DIVISION OF ADMINISTRATIVE LAW APPEALS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: P.J.[1] & Arlington Public Schools
BSEA# 25-03415
RULING ON PARENTS’ MOTION IN LIMINE
This matter comes before the Hearing Officer on P.J.’s Motion In Limine to Exclude APS’s IEP Proposed After P.J.’s Enrollment at the Carroll School (“Motion” or “Motion In Limine”) filed with the BSEA on October 2, 2024. On October 8, 2024, Arlington Public Schools (“District” or “Arlington” or “APS”) filed Arlington Public Schools’ Response to Parents’ Motion (“Response”). As advised during a Conference Call with the Parties and for the reasons articulated below, the Motion is DENIED.
RELEVANT PROCEDURAL HISTORY
On September 16, 2024, Parents filed a Hearing Request against Arlington setting forth seven issues and seeking eight proposed resolutions (the eighth resolution seeking reimbursement for attorney’s fees and expert fees).
On September 17, 2024, a Notice of Hearing issued scheduling an initial hearing date for October 21, 2024, and requiring the District to file its response to the Hearing Request by September 26, 2024.
On September 26, 2024, the District filed a Motion to Dismiss. Also on September 26, 2024, Parents filed an Opposition to the Motion to Dismiss. Parents requested a motion hearing on their Opposition to the Motion to Dismiss. By Order dated September 27, 2024, a motion hearing on the Motion to Dismiss and a Conference Call were scheduled for October 9, 2024.
On October 2, 2024, prior to the scheduled Conference Call, Parents filed the underlying Motion in Limine seeking to exclude a certain Individualized Education Program (IEP) from evidence as irrelevant to the determination of whether the District offered P.J. a FAPE prior to her unilateral enrollment at Carroll School, as it was proffered after P.J. began attending Carroll School. Parents rely on 20 USC 1412(a)(10)(C)(ii) and a Second Circuit decision interpreting this provision[2] to contend that since they received the disputed IEP after P.J. commenced attending Carroll School, this IEP cannot be considered by the Hearing Officer. Parents also requested that a ruling issue expeditiously so as to determine whether to expend resources to have their expert review this IEP in preparation for the hearing. Parents requested a motion hearing on their Motion.
On October 8, 2024, the District filed the underlying Opposition. The District submits that the disputed IEP should not be excluded from evidence as it was issued after several attempts to schedule a Team meeting with Parents to resolve the dispute that led to Parents’ decision to unilaterally place P.J. at Carroll School this school year. The District contends it timely reached out to Parents, but Parents declined to meet. Eventually, a Team meeting was held without Parents and the disputed IEP was developed prior to P.J.’s start at Carroll School. Parents “cannot have it both ways”. The District also relies on a prior decision by this Hearing Officer, holding that “Districts retain the right … to cure deficient IEPs in unilateral placement disputes, [to] avoid[ ] prospective reimbursement upon the proffering of an appropriate IEP”[3].
During the October 9, 2024 Conference Call, the Parties were advised that Parents’ request for a motion hearing on the Motion in Limine would not be granted as neither testimony nor oral argument would advance my understanding of the issues involved[4]. The Parties were further advised orally that Parents’ Motion in Limine was denied, as all arguments contained in both the Motion and Opposition relate to the weight I should apply to the IEP in question rather than to its admissibility at the hearing on the merits. The Parties were also informed that a written Ruling would subsequently issue to confirm this determination.
On October 10, 2024, based upon the Parties’ joint written request, the Hearing was postponed for good cause until December 10, 2024.
Finally, on October 21, 2024, a Ruling on the District’s Motion to Dismiss was issued that allowed in part and denied in part the District’s request. As a result, all claims in the Hearing Request were dismissed with the exception of the following remaining issues:
- Whether Arlington has failed to provide P.J. with a FAPE since she was found eligible for special education;
- If so, whether P.J.’s placement at the Carroll School is appropriate;
- If so, what, if any, reimbursement is appropriate for P.J.’s placement and transportation costs at the Carroll School; and
- Whether P.J. required an extended school year program in the summer of 2024 to receive a FAPE.
FACTUAL BACKGROUND[5]
- P.J. is in the second grade at the Carroll School. She was initially found eligible for special education services in the spring of 2023 when she was in Kindergarten. P.J. attended kindergarten and first grade at an elementary school in Arlington. (Hearing Request; Motion).
- According to Parents, P.J. “continued to struggle throughout first grade”. (Motion).
- An annual IEP was proposed for P.J. in March 2024[6]. (Motion).
- Via letter dated March 27, 2024, Parents notified the District of their intention to unilaterally place P.J. at the Carroll School for the 2024-2025 school year and requested that the District agree to place P.J. there. Parents also advised that they reserved their right to seek reimbursement for P.J.’s tuition at the Carroll School if this placement request was denied. (Hearing Request; Motion; Opposition).
- On April 5, 2024, the District denied Parents’ request and offered a Team meeting to discuss potential resolution. On the same day Parents declined to meet. (Hearing Request; Opposition).
- On April 8, 2024, the District reached out to Parents again to offer a Team meeting to discuss Parents’ concerns and potential resolution prior to the unilateral placement. The District also advised that if Parents wanted to waive the meeting, the Team meeting would be held in their absence and an updated IEP would be sent home, “if appropriate”. Parents did not respond to this outreach. (Opposition).
- On August 9, 2024, the District again contacted Parents by email to schedule a Team meeting to discuss potential resolution prior to the start of P.J.’s unilateral placement and proposed that the meeting occur on August 29, 2024. Parents responded declining to meet unless the District intended to make a counteroffer to their proposal. (Opposition).
- On August 11, 2024, the District replied to Parents and advised it would email a proposed IEP as a “good faith effort to resolve this dispute” and asked that Parents reach out with any questions. (Opposition).
- On August 27, 2024, Parents responded to the District’s August 11, 2024 email acknowledging the update and asking that the District email the proposed IEP as an attachment when complete. (Opposition).
- On August 29, 2024, an IEP Team meeting was held without Parents’ participation and the Team proposed an IEP dated 8/29/2024 – 2/28/2024 (“August IEP”). (Opposition).
- P.J. began attending the Carroll School on September 3, 2024. (Hearing Request; Motion).
- On September 10, 2024, the District sent Parents the August IEP. Among other things, this IEP proposes, for the first time, certain extended school year services during the summer of 2024. (Hearing Request; Motion; Opposition).
- On September 16, 2024, Parents sent a letter to the District asking that it fund P.J.’s participation in a summer program at the Carroll School starting with the summer of 2025 “with ‘stay put’ rights” and reserving their right to seek reimbursement for her summer program tuition at the Carroll School. Parents also filed their Hearing Request on the same date. (Hearing Request).
LEGAL STANDARDS
1. Admissibility of Evidence at a BSEA Hearing
Rule XVI(C) of the Hearing Rules for Special Education Appeals provides that although a BSEA Hearing Officer is not bound by the rules of evidence applicable to the courts, except with regard to rules of privilege recognized by law, evidence is admissible “… only if it is the kind of evidence upon which reasonable persons are accustomed to rely in the conduct of serious affairs”[7]. Further, under Rule IX(B) Hearing Officers have the duty to “receive and consider all relevant and reliable evidence”.
APPLICATION OF LEGAL STANDARDS
After reviewing the Motion and Opposition in light of the four remaining issues for hearing set forth above, I decline to exclude the August IEP from the evidence at a hearing on the merits. The August IEP undisputably meets the standard for admissibility at a BSEA hearing, as it is the kind of evidence parents and districts commonly rely upon in the conduct of special education matters.
Additionally, the August IEP is reliable as a document and relevant to the issues in this matter. As it is the first IEP to offer P.J. extended school year services, it is highly relevant to the fourth remaining issue. Further, it is premature at this juncture to exclude the August IEP from evidence with regard to the first three remaining issues as the facts and circumstances surrounding the development of the August IEP are disputed and can only be determined at a hearing on the merits. Both Parties, however, retain the right, at the conclusion of the hearing, to submit arguments as to the weight I should attribute to the August IEP in light of the evidence and testimony presented during the hearing.
ORDER
Parents’ Motion in Limine is DENIED. The August IEP will be admitted into evidence at the hearing on the merits in this matter.
By the Hearing Officer,
/s/ Marguerite M. Mitchell
Marguerite M. Mitchell
Date: October 25, 2024
[1] PJ is a pseudonym used by the Parents in their Hearing Request.
[2] Bd. of Educ. of Yorktown Cent. Sch. Dist. v. C.S., 990 F.3d 152(2nd Cir. 2021).
[3] In Re: Framingham Pub. Sch. BSEA No. 2312178, 30 MSER 65(Decision, Mitchell, 2024).
[4] See Rule VI(D) of the BSEA’s Hearing Rules for Special Education Appeals.
[5] The factual statements set forth are taken as true for purposes of this Ruling only. Additionally, certain factual statements were also included in the Ruling on the District’s Motion to Dismiss and are not repeated herein unless relevant to the underlying Motion. The Parties should refer to the Ruling on the District’s Motion to Dismiss for these additional factual statements.
[6] The specific dates of this IEP are unknown at this time.
[7] This mirrors the provisions in MGL. c. 30A s 11 for admissibility of evidence.