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In Re: P.J.[1] & Arlington Public Schools BSEA #25-03415

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 THE DISTRICT’S MOTION TO DISMISS

This matter comes before the Hearing Officer on the Arlington Public Schools’ Motion to Dismiss (“Motion” or “Motion to Dismiss”) filed with the BSEA on September 26, 2024.  Later that day, Parents filed P.J.’s Opposition to Arlington Public Schools’s (sic) Motion to Dismiss (“Opposition”).  The Parties also participated in a Motion hearing on October 9, 2024.  For the reasons articulated below, the Motion is ALLOWED in part

RELEVANT PROCEDURAL HISTORY

On September 16, 2024, Parents filed a Hearing Request against Arlington Public Schools (“District” or “APS” or “Arlington”) identifying seven (7) issues, noted as 1) “Placement”; 2) “Tuition Reimbursement”; 3) “Transportation”; 4) “Cost of Lunch”; 5)”After-School Spot”; 6) “Extended School Year Placement”; and 7) “Extended School Year Tuition Reimbursement”.  As to the first four issues, Parents contend that the District has failed to provide P.J. with a free, appropriate, public education (FAPE) and that Parents are entitled to reimbursement and prospective relief “with ‘stay put’ rights” for P.J.’s placement, transportation, and the cost of her home packed lunch at the Carroll School, which P.J. began attending at the start of this school year.  As to the fifth issue, Parents contend that P.J.’s younger siblings should not lose the preference for a spot in the District’s after school program located at the school P.J. had attended in Arlington, due to P.J.’s withdrawal from the District and enrollment at the Carroll School as a result of the District’s alleged failure to provide P.J. with a FAPE.  Finally, as to the last two issues, Parents contend that the District failed to offer P.J. extended school year services (ESY) this past summer until receiving an IEP on September 10, 2024 that proposed ESY, and that the District should reimburse Parents for prospective summer services at the Carroll School “with ‘stay put’ rights”’. 

Parents sought the following resolutions:

“A.      Resolution of Issue# 1: Order APS to place P.J. at the Carroll School through an out-of­district placement with “stay put” rights.

B.       Resolution of Issue# 2: In the alternative to Paragraph [A], order APS to reimburse P.J. (sic) for tuition prospectively and retrospectively for P.J. to attend the Carroll School.

C.       Resolution of Issue# 3: Order APS to provide transportation for P.J. from her home to the Carroll School.

D.       Resolution of Issue# 4: Order APS to reimburse P.J. (sic) for the cost of the lunch that P.J. takes to Carroll School.

E.       Resolution of Issue# 5: Order APS to provide a spot for after-school care to P.J.’s younger siblings should they elect to attend APS that they otherwise would have received had P.J. been enrolled at APS.

F.       Resolution of Issue # 6: Order APS to provide a place for P .J. at Carroll School during the summer with “stay put” rights.

G.       Resolution of Issue# 7: In the alternative to Paragraph [F], order APS to reimburse P.J. (sic) for tuition prospectively and retrospectively for P.J. to attend Carroll School during the summer.

H.       P.J. further requests that the Bureau of Special Education Appeals order APS to pay attorney’s fees[2], costs (including experts’ costs), and order such other relief it deems necessary.”

On September 17, 2024, a Notice of Hearing was 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 the underlying Motion.  Also on September 26, 2024, Parents filed the underlying Opposition[3].  Parents requested a motion hearing on their Opposition.  By Order dated September 27, 2024, a motion hearing was scheduled for October 9, 2024. 

The motion hearing was held as scheduled, and the Parties supplemented their written filings with additional arguments.  The Parties written and oral arguments are summarized infra.

On October 10, 2024, based upon the Parties’ joint written request the Hearing was postponed for good cause until December 10, 2024.

FACTUAL BACKGROUND[4]

  1. P.J. is in the second grade.  She was initially found eligible for special education services in the spring of 2023.  (Hearing Request).
  1. On May 17, 2023, Dr. Rachel Leary reviewed the District’s initial evaluations and diagnosed P.J. with a “Specific Learning Disability – Reading (Dyslexia)”.  (Hearing Request).
  1. P.J. participated in the Massachusetts General Hospital Institute of Health Professionals clinical literacy program during the summer of 2023, over the 2023-2024 school year and during the summer of 2024, at Parents’ expense.  (Hearing Request).
  1. On March 27, 2024, Parents submitted a letter to the District requesting that it place P.J. at the Carroll School and advised that it was reserving its right to seek reimbursement for P.J.’s tuition at the Carroll School if this placement request was denied.  Parents also requested P.J. be provided with transportation to and from the Carroll School.  Finally, Parents requested that the District guarantee P.J.’s younger siblings, who do not yet attend APS, a spot at an after school program in the elementary school they will attend in the future.  (Hearing Request).
  1. The District denied Parents’ placement and transportation request by email on April 5, 2024.  The District also declined Parents’ request for reimbursement.  (Hearing Request).
  1. On June 12, 2024, the District denied Parents’ request to pay for the cost of P.J.’s home packed lunch[5] and also informed Parents it could not guarantee a spot in its after school program for P.J.’s younger siblings.  (Hearing Request).
  1. P.J. began attending the Carroll School at the start of the 2024-2025 school year.  The Carroll School is a private special education school.  It is not approved by the Department of Elementary and Secondary Education as a special education school pursuant to 603 CMR 28.09 to provide special education services to students as part of the continuum of special education programs available in the Commonwealth to students with disabilities as required by the IDEA.  (Hearing Request; Motion).
  1. On September 10, 2024, the District sent Parents an IEP drafted on August 29, 2024, that, among other things, providing for certain extended school year services during the summer of 2024.  (Hearing Request).
  1. On September 16, 2024, Parents sent a letter to the District asking that it fund Student’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 Student’s summer program tuition at the Carroll School.  Parents also filed their Hearing Request on the same date.  (Hearing Request).

POSITION OF THE PARTIES

ARLINGTON’S POSITION

Arlington seeks dismissal of the Hearing Request on the basis that the BSEA cannot order the requested relief of prospective placement (including transportation and ESY) at the Carroll School, and thus, Arlington contends that the Hearing Request fails to state a claim upon which relief may be granted.  Arlington argues that since the Carroll School does not accept public funding, it is beyond the BSEA’s jurisdiction to order prospective placement of any student there.  Arlington also notes that this case differs significantly from cases that request retroactive reimbursement for unilateral placements of students at unapproved schools, and that such difference is dispositive as the BSEA is without jurisdiction to issue the relief sought by Parents here.  Nevertheless, during the motion hearing, the District clarified that it was in fact seeking dismissal of all claims in the Hearing Request, including retroactive claims, with the exception of any claim that Student should have been provided with an extended school year program during the summer of 2024, in order to receive FAPE.

Moreover, according to Arlington, an Order mandating prospective reimbursement of tuition (including transportation and ESY expenses) for P.J.’s future attendance at the Carroll School is contrary to the Massachusetts municipal finance laws that mandate expenditure of public funds be made only for services rendered.  Arlington also requests that I take administrative notice of a recent Ruling by Hearing Officer Kantor Nir dismissing similar claims involving a different student in the District[6].  Finally, Arlington contends that the issues relating to P.J.’s entitlement for reimbursement for a “home packed lunch”, for P.J.’s siblings to be guaranteed placement in an after-school program and for Parents to be reimbursed for “attorney’s fees [and] costs (including experts’ fees)” must also all be dismissed as beyond the BSEA’s jurisdiction, as they all involve remedies that the BSEA does not have the authority to order.

PARENTS’ POSITION

Parents oppose dismissal of this matter and dispute that the BSEA does not have jurisdiction to order prospective placement at the Carroll School despite it being an unapproved out-of-district school.  Parents claim that 603 CMR 28.06 grants the BSEA authority to order placement at both approved and unapproved out-of-district schools[7], and that the underlying dispute by Parents over P.J.’s unilateral placement at the Carroll School is within the BSEA’s jurisdiction.  Alternatively, Parents contend that the holding in the United States Supreme Court case of Florence Cnty. Sch. Dist. Four v. Carter ex. rel. Carter, 510 US 7, 14 (1993) supports their contention that the BSEA has authority to order placement at an “unapproved” school, and that Parents are entitled to a reimbursement order that is “prospective in the sense that APS will be required to reimburse P.J. for future tuition costs”.  Parents also rely on First and Second Circuit Court of Appeals decisions and a Massachusetts District Court decision[8] as support for their request for prospective placement at the Carroll School.  According to Parents, “the law does not require P.J. to bring a new due process hearing request upon receiving each tuition bill.  That would be absurd.” 

As to their claims for reimbursement for a home-packed lunch and a guarantee of a spot in the after school program for P.J.s siblings (who are not currently enrolled in Arlington), Parents contend both to be within the jurisdiction of the BSEA because P.J. (and her siblings) would have received these benefits had she remained in attendance at Arlington Public Schools, and these benefits are now lost only due to the District’s failure to provide her with a FAPE.  As to the home-packed lunch claim, Parents submit that the right a free lunch is a right all students have under a federal statute and this benefit falls within the definition of “related services” for special education eligible students, as it is a supportive service that assists the family of the disabled child from having to incur additional financial burdens, just as general education children do not have to incur this financial burden when they attend public school[9].  Parents also rely on the common law principle of statutory construction of “ejusdem generis”, contending that the right to a free lunch should be aligned with the right to transportation that is guaranteed for special education students by law, rather than other rights available to all students regardless of disability (like a diploma or waivers of competency determination requirements).  No statute authorizes those general benefits whereas transportation, like a free lunch, is guaranteed by law.   Parents acknowledge, however, that nothing in P.J.’s IEP addresses provision of a lunch for P.J.

As to their request for attorney’s fees, Parents contend that this request should not be denied as there is no prohibition against parents who are attorneys, such as Father, to be awarded attorney fees in special education disputes when they are “prevailing parties”.  Doing so also supports access to justice principles as having parents as litigators in special education matters, where most parents proceed pro se, will serve to “… positively contribute to the development of special education law.  Compensating the attorneys [who are also parents] promotes justice.”

Finally, Parents oppose dismissal of Issues 3 (transportation), 6 (extended school year placement) and 7 (extended school year tuition reimbursement) as the District has failed to provide any argument in support of dismissal of these claims[10].   Parents confirmed that Student did not participate in any summer programming at Carroll School during the summer of 2024, however. 

LEGAL STANDARDS

1.       Legal Standard for a Motion to Dismiss.

Rule XVI(A) and (B) of the Hearing Rules for Special Education Appeals and 801 CMR 1.01(7)(g)(3), allows a hearing officer to dismiss matters for several reasons, including if the BSEA lacks jurisdiction over a claim or if party requesting the hearing fails to state a claim upon which relief can be granted[11].  To survive a motion to dismiss, there must exist “factual ‘allegations plausibly suggesting (not merely consistent with)’ an entitlement to relief…”[12].  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”[13].  “Factual allegations must be enough to raise a right to relief above the speculative level… [based] on the assumption that all the allegations in the [hearing request] (even if doubtful in fact) ….”[14]

Motions to Dismiss should be approached with caution, regardless of the representation status of a party[15].  Consistent with FRCP 8(a), hearing requests filed under the IDEA need only consist of “notice pleadings”, i.e., sufficient so as to provide fair notice to the opposing party of the nature of the dispute[16].  However, “[w]hile …. detailed factual allegations” are not necessary, “… a [Student’s] obligation to provide the ‘grounds’ of [] ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do”[17].

2.       Jurisdiction of BSEA and Availability of Remedies.

20 USC §1415(b)(6) grants parties the right to file timely complaints (with the state educational agency designated to hear the same) “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”[18].  Similarly, M.G.L. c. 71B §2A, establishing the BSEA, authorizes it to resolve special education disputes concerning,

“…(i) any matter 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 promulgated hereunder or under the [IDEA], 20 U.S.C. section 1400 et seq., and its regulations; or (ii) a student’s rights under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. section 794, and its regulations”.

However, this does not mean that every alleged wrong imposed on an IDEA or 504-eligible student is actionable at the BSEA[19].  When the claimed violation pertains to a right that is available to all students regardless of their disability status or eligibility under the IDEA, it must be pursued in a forum other than the BSEA[20].

The BSEA’s jurisdiction also only extends over disputes about a particular child.  The BSEA does not have authority to consider matters on a class basis or to order relief for anyone other than the single student involved in an underlying hearing request.  As the BSEA has recognized,

“The BSEA is not a[n agency] of general jurisdiction….  Throughout M.G.L. c. 71 B, 20 U.S.C Section 1400 et seq., 29 U.S.C. Section 794 and the regulations promulgated pursuant to these statutes, the repeated references are to a child with a disability, the childthe student, all in the singular, individual form.  The BSEA’s jurisdiction is, therefore, limited to resolving disputes and providing relief for individual students[21].

Moreover, for those matters within its jurisdiction, the BSEA is also limited by law as to the remedies it can order.  Regardless of how a claim is characterized, if it is, in essence, a claim alleging a failure to provide a FAPE to a student, punitive and tort-like compensatory damages are not available, “…because the windfall of such awards to IDEA plaintiffs would likely come at the expense of other educational benefits for other schoolchildren by diverting from them scarce educational resources”[22].  As the First Circuit recognized, “in choosing not to authorize tort-like monetary damages or punitive damages in cases under the IDEA, Congress made a balanced judgment that such damages would be an unjustified remedy for this statutorily created cause of action”[23].  Instead, the available remedies under the IDEA involve “[a]wards of compensatory education and equitable remedies that involve the payment of money, such as reimbursements to parents for expenses incurred on private educational services to which their child was later found to have been entitled …”[24].  

3.       Unilateral Placement and the Right to Reimbursement.

Parents who are dissatisfied with a proffered IEP may “unilaterally” place their child at a private school “during the pendency of review proceedings”[25].  Parents who place students unilaterally, do so at their own financial risk[26].  Parents may request reimbursement of the expenses they already have incurred related to their unilateral placement of their child, but they are not entitled to such reimbursement unless the school district is found to have “not made a free appropriate public education available to the child in a timely manner” prior to the unilateral placement[27] and the private school chosen is also found to be proper.  Private school placements are only “proper under the [IDEA]” if the education they provide is “reasonably calculated to enable the child to receive educational benefits” even if it does not meet all of the requirements a school district must comply with to provide a FAPE[28]

Reimbursement awards are equitable remedies intended to ensure that Districts pay for expenses incurred by parents if they do not meet their obligation to provide a student with a FAPE[29].  When parents disagree with school district proposals they are “… faced with a choice:  go along with the IEP to the detriment of their child if it turns to be inappropriate or pay for what they consider to be the appropriate placement”[30].  “A reimbursement award when a school district fails to provide a FAPE merely requires the district ‘to belatedly pay expenses that it should have paid all along’”[31].  Although such awards place a “significant financial burden” on school districts, the Supreme Court reasoned that,

“public educational authorities who want to avoid reimbursing parents for the private education of a disabled child can do one of two things: give the child a free appropriate public education in a public setting or place the child in an appropriate private setting of the State’s choice.  This is the IDEA’s mandate, and school officials who conform to it need not worry about reimbursement claims”[32].

Notwithstanding the above, Districts are not without the ability to cure defective IEPs after a unilateral placement has been made, and there is no inherent right to prospective relief at the unilaterally chosen placement[33].  Due process hearing officers, therefore, have “broad discretion” when making reimbursement awards[34].  Given the equitable nature of such awards “equitable considerations are relevant in fashioning relief”[35].  “All relevant factors” must be factored into a reimbursement award should such an award be otherwise warranted[36].

Guided by this legal authority, I turn to the instant Motion.

APPLICATION OF LEGAL STANDARDS

After reviewing the Hearing Request and the arguments of the Parties in support of the Motion and the Opposition in the light most favorable to P.J., as I am required to do, I find that all claims contained in the Hearing Request except for those claims disputing Arlington’s provision of IEPs that were reasonably calculated to provide P.J. with a FAPE and the claim for ESY during the summer of 2024, must be dismissed as outside the jurisdiction of the BSEA.  This includes dismissal of P.J.’s claims for prospective placement and future reimbursement for P.J.’s placement (including transportation and ESY) at the Carroll School.  It also includes the request for reimbursement for the costs of P.J.’s home-packed lunches, for a guaranteed after-school care spot for P.J.’s siblings, and for attorney’s fees and experts’ costs. My reasoning follows.

Prospective Placement, Transportation and ESY at the Carroll School

Parents do not dispute that the Carroll School is not an approved special education school in the Commonwealth, but instead contend this status is not fatal to their claims at this juncture.  Parents also confirm that they only seek for P.J. to attend the Carroll School and decline to consider any other public school program or approved or unapproved private school program for Student.  However, contrary to Parents’ contention, Carroll’s unapproved status has dispositive implications for the prospective placement, transportation and ESY claims, even considering such claims in the light most favorable to P.J. 

As Hearing Officer Kantor Nir properly reasoned only last month (in addressing similar requests by parents of a student also unilaterally placed out of Arlington and into the Carroll School at the start of this school year), prospective placement at the Carroll School, with transportation, and ESY services starting next summer, and “stay put rights”, are not an available remedy that a Hearing Officer can award[37].  Hearing Officer Kantor Nir’s analysis applies to the same claims made in this matter, and I fully adopt it and incorporate it herein.  Specifically, as Hearing Officer Kanor Nir reasoned,

… [A] Hearing Officer cannot order prospective placement in an unapproved program where an approved appropriate program is available.  Under 20 U.S.C. § 1401(a)(18)(D), the ‘free and appropriate public education’ required under IDEA must meet the standards of the State educational agency; this means that “the universe of private programs that a state may consider is at least partly defined by state law.”[38]  603 CMR 28.06 (3)(d) states that the “school district shall, in all circumstances, first seek to place a student in a program approved by the Department pursuant to the requirements of 603 CMR 28.09….  When an approved program is available to provide the services on the IEP, the district shall make such placement in the approved program in preference to any program not approved by the Department.”  As such, the Hearing Officer cannot order a school district to fund an unapproved program[39] except [as reimbursement] “in cases where a parent unilaterally places a child in [an unapproved] program because the school has not offered an appropriate IEP.”[40]  … Nevertheless, even if Parents could demonstrate that Arlington’s IEP was inappropriate and that there were no available DESE-approved options when they placed Student, all I could order is reimbursement.  Even if I take as true “the allegations of the complaint, as well as such inferences as may be drawn therefrom in [Parents’] favor,”[41] as I am required to do, I could not order [prospective placement at, transportation to or] extended school year … with ‘stay put’ rights” or “… order the district to reimburse for tuition prospectively” at Carroll School.  Rather, the relief would be to order Arlington to create or locate a DESE-approved placement in accordance with 603 CMR 28.06(3)(d) or, if no approved placement can be identified, order the District to “request assistance from the Department” for the use of an unapproved program in accordance with 603 CMR 28.06(e)…”.

I agree that if a District is found to have failed to propose an IEP that will provide a student with a FAPE, then parents may be reimbursed for the costs already incurred for an unapproved private school placement that is found to otherwise be proper (i.e., is “reasonably calculated to enable the child to receive educational benefits”) even if it does not meet all of the requirements a school district must comply with to provide a FAPE.  However, in such cases, the remedy is retrospective in nature, not prospective[42].  None of the cases cited by Parents supports a contrary result. 

Parents point to language in Doe v. Portland as authorizing requests for prospective relief.  However, the Court’s citations for that language refer to the IDEA provisions involving placements pending judicial appeal (i.e., “placement pending appeal”) not prospective rights to placements outside the litigation process, as Parents seek in the instant matter[43].  Further, the Court held that prospective placement rights did not attach to the unilateral placement since a subsequent IEP was found to provide a FAPE[44], and thus this successor IEP controlled for both placement pending appeal purposes and prospectively. Thus, reimbursement was ordered only for costs incurred in the first school year of the unilateral placement, but not the second year[45].

Similarly, neither the Massachusetts District Court’s holding in Sudbury nor the Second Circuit’s decision in Yorktown approved prospective placements at unapproved programs, contrary to Parents’ contentions.  As Doe v. Portland specifically recognized, in Sudbury the “… hearing officer did not approve the IEP [for any future years] and made no prospective determination whatsoever”[46].  Rather, all that Sudbury approved was continued placement pending appeal rights at the approved unilateral placement[47].  Additionally, the relief awarded in Yorktown provided reimbursement only for the unilateral placement period within the challenged IEP dates, that had expired prior to the administrative due process decision being issued[48].  It did not address prospective placement at the approved unilaterally chosen school.

In light of the above, all claims for prospective placement, transportation and ESY at the Carroll School are hereby dismissed with prejudice. 

Home-Packed Lunches

Parents’ claims for reimbursement for the costs associated with sending P.J. a home-packed lunch at the Carroll School are also dismissed as beyond the BSEA’s jurisdiction.  Parents concede that their claim is grounded in the right that all public school students, regardless of disability, must, by law, be provided with a free lunch this school year[49].  I note that nothing in P.J.’s IEP addresses her right to be given a free lunch for disability-based reasons or needs, nor do Parents so contend.   

I disagree with Parents that home-packed lunches fall within the definition of “related services”.  The IDEA defines “related services” as transportation, and such developmental, corrective, and other supportive services … as may be required to assist a child with a disability to benefit from special education….”[50].  While Parents may be entitled to be reimbursed for the special education and related services costs they have already paid for Student’s unilateral placement at Carroll School, (if Arlington is found to have failed to offer Student a FAPE, and Carroll School is subsequently found to be “proper”), this does not mean that every cost associated with Parents’ choice to unilaterally place Student at a private school program is reimbursable.  Parents are only entitled to reimbursement for those expenses Student requires to receive a FAPE.  As the Supreme Court has recognized,

In the IDEA’s administrative process, a FAPE denial is the sine qua non.  Suppose that a parent’s complaint protests a school’s failure to provide some accommodation for a child with a disability. If that accommodation is needed to fulfill the IDEA’s FAPE requirement, the hearing officer must order relief. But if it is not, he cannot—even though the dispute is between a child with a disability and the school she attends[51]

Thus, even viewing this claim in the light most beneficial to P.J., I find that the costs associated with a home-packed lunch are not required for her to benefit from special education, and are not necessary to fulfill the IDEA’s FAPE requirement.  As such, this claim is outside my jurisdiction and is therefore DISMISSED with prejudice[52].

Guaranteed After-School Care for P.J.’s Siblings

P.J.’s claims for her siblings to be guaranteed a spot in the after-school program at the school in Arlington she attended last school year is also outside my jurisdiction.  Notwithstanding that this involves a right that is available to all students attending Arlington schools, regardless of disability, this is also a claim for relief on behalf of the subject student’s siblings, not P.J., herself.  Further, Parents have also confirmed that neither of P.J.’s siblings are currently enrolled in Arlington.  Nothing within any state or federal law or decisional authority governing the limited jurisdiction of the BSEA, grants me the authority to guarantee non-enrolled potential third-party students, who are not the underlying student in the instant matter, the right to participate in an after-school program offered to all students regardless of disability[53].  As such, the after-school care claim is DISMISSED with prejudice.

Attorney’s Fees and Experts’ Costs

Finally, Parents’ requested relief seeking attorney fees and expert fees must also be dismissed as outside my jurisdiction.  Here, again, Hearing Officer Kantor Nir properly analyzed the lack of BSEA jurisdiction over requests for attorney’s fees and expert fees in IDEA-based disputes.  As to attorney’s fees claims, pursuant to the IDEA such relief may be awarded, in certain circumstances, to “prevailing parties” pursuant to a claim brought in the district court after the administrative proceedings have concluded[54].  Such a claim is an “independent suit” and the “‘… only means by which a party may recover attorney’s fees for administrative proceedings, … because the IDEA only authorizes the courts, and not the administrative hearing officer to award the attorney’s fees’”[55].  It is also of no consequence to my jurisdiction that Parent is the attorney for P.J., as that does not change my inability to consider the request for attorney’s fees.  Insofar as Parents’ expert fees claim is concerned, the IDEA is clear that the fees available to “prevailing parties” are attorney’s fees only.  No right to other professional fees, including expert fees, exists under the IDEA[56].  Thus, the claims for “attorney’s fees, costs (including experts’ costs)” are hereby DISMISSED with prejudice.

ORDER

The Motion to Dismiss is ALLOWED in part and DENIED, in part.  As such, only the following issues shall proceed to Hearing in this matter on December 10, 2024, in accordance with the provisions of my October 10, 2024, Ruling:

  1. Whether Arlington has failed to provide P.J. with a FAPE since she was found eligible for special education;
  2. If so, whether P.J.’s placement at the Carroll School is appropriate;
  3. If so, what, if any, reimbursement is appropriate for P.J.’s placement and transportation costs at the Carroll School; and
  4. Whether P.J. required an extended school year program in the summer of 2024 to receive a FAPE.

All other issues contained in the Hearing Request are hereby DISMISSED with prejudice, including but not limited to: Issues 1 and 2, to the extent that they seek prospective placement or prospective reimbursement for costs of Student’s attendance at the Carroll School; Issue 3, to the extent that it seeks reimbursement for Student’s prospective transportation costs to the Carroll School;  Issue 4, in its entirety; Issue 5, in its entirety; Issue 7, in its entirety; and Parents’ requests for reimbursement of “attorney’s fees and costs (including experts’ costs)”.

By the Hearing Officer,

/s/ Marguerite M. Mitchell
Marguerite M. Mitchell

Date: October 21, 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]   PJ is a pseudonym used by the Parents in their Hearing Request.

[2]   On September 26, 2024, P.J.’s father, who is an attorney, entered his appearance as P.J.’s Attorney in this matter.

[3]   Attached to the Opposition was a redacted Settlement Agreement pertaining to an unidentified different student’s attendance at the Carroll School.

[4]   The factual statements contained herein are taken as true for purposes of this Ruling only.

[5]   It is unclear from the Hearing Request exactly when Parents made this request.

[6]   In Re: Student and Arlington Public Schools BSEA #2503543 (Ruling on Arlington Public School’s [Partial] Motion to Dismiss, Kantor Nir, September 30, 2024). 

[7]   During the motion hearing, Parents clarified that they are only considering and seeking relief for P.J.’s placement at the Carroll School.  They do not seek to have any other school placement, including but not limited to approved out of district schools, considered for P.J.

[8]   Specifically, Parents also relied on Doe v. Portland Public School, 30 F.4th 85 (1st Cir. 2022), Bd. of Educ. of Yorktown Cent. Sch. Dist. v. C.S., 990 F.3d 152(2nd Cir. 2021) and Sudbury Pub. Sch. v. Mass. Dept. of Elem & Second. Ed., 762 F.Supp. 2d, 254 (D. Mass. 2010).

[9]   Parents explained that Carroll School requires all students to bring their own food to school.  They do not offer any student with a school meal.  Thus, P.J.’s lunches must be packed from home now that she attends Carroll, although she would have eaten lunch for free had she stayed in Arlington.

[10]   The District clarified at the Motion Hearing that it considers issues 3 and 7 to be encompassed with its underlying motion to dismiss arguments about P.J.’s prospective placement at Carroll School, as such placement would involve considerations of transportation and extended school year services.

[11]   As these rules/regulations are analogous to Rule 12(b)(6) of the Federal and Massachusetts Rules of Civil Procedure (FRCP and MRCP, respectively), hearing officers are generally guided by federal court decisions in deciding such motions.

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

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

[14]   Iannocchino 451 Mass. at 636 (quoting Bell Atl. Corp., 550 U.S. at 555); see Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 12 (1st Cir. 2011).

[15]   In some matters where, unlike this case, parties are pro se, there is a further degree of leniency that should be applied in reviewing Hearing Requests that are sought to be dismissed.

[16]   FRCP 8(a), “Claim for Relief.  A pleading that states a claim for relief must contain: … (2)a short and plain statement of the claim showing that the pleader is entitled to relief…”; see Bell Atl. Corp., 550 U.S. at 555.

[17]   Bell Atl. Corp., 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)).

[18]   See 34 CFR 300.507(a)(1); 603 CMR 28.08(3)(a) (providing for the BSEA to hear “… any matter concerning the eligibility, evaluation, placement, IEP, provision of special education in accordance with state and federal law or the procedural protections of state and federal law for students with disabilities”).

[19]   Fry v. Napoleon, 580 US 154, 167-68 (2017), holding that in situations where a dispute does not involve the IDEA’s FAPE requirement “even though the dispute is between a child with a disability and the school she attends … the hearing officer cannot provide the requested relief.  [The hearing officer’s] role, under the IDEA, is to enforce the child’s ‘substantive right’ to a FAPE….  And that is all.” (internal citations omitted).

[20]   See In Re: Springfield Pub. Schs., et. al., BSEA #2309351, 29 MSER 154 (Ruling, Mitchell, 2023) (dismissing claims involving challenges to DESE’s modified competency determination process approved by the Board of Elementary and Secondary Education during the COVID-19 pandemic  as being beyond the jurisdiction of the BSEA to consider since they are general education requirements applicable to all students).

[21]   In Re: Holyoke Pub. Sch. and Jay, BSEA #1800619, 24 MSER 20 (Ruling, Oliver, 2018); see In Re:  Springfield Pub. Schs., BSEA #2203555, 28 MSER 111 (Ruling, Berman, 2022) (“[i]ndividual claims must be dismissed, however, if they do not arise under [federal or state special education statutes, or applicable portions of §504 of the Rehabilitation Act].  Unlike a court with general jurisdiction, the BSEA may consider only those claims for which enabling statutes and regulations expressly grant authority”) citing Globe Newspaper Co. v. Beacon Hill Architectural Comm., 421 Mass. 570, 586 (1996) (“Any judicial review of agency action embodies the principle that an agency has no inherent authority beyond its enabling act and therefore it may do nothing that contradicts such legislation”); In Re: Student & Quincy Pub. Sch. and Dept. of Elementary and Secondary Education, BSEA #2408249, 30 MSER 176 (Ruling, Mitchell, 2024).

[22]  Diaz-Fonseca, 451 F.3d at 36.

[23]  Id. at 37; see Frazier v Fairhaven School Committee, 276 F.3d 52, 59 (1st Cir. 2002) (noting without explanation that “… the array of remedies available under the IDEA does not include money damages.”).

[24]  Nieves-Marquez v. Puerto Rico, 353 F.3d 108, 124 (1st Cir. 2003); see 20 U.S.C. § 1412(a)(10)(C)(ii); Diaz-Fonseca 451 F.3d at 31.

[25]   Sch Comm. of Town of Burlington, Mass. v. Dept. of Educ. of Mass., 471 US 359, 373-74 (1985).

[26]   Id. at 374.

[27]   20 U.S.C. §1412(a)(10)(C)(ii); G.D. ex rel. Jeffrey D. v. Swampscott Pub. Sch., 27 F.4th 1, 5–6 (1st Cir. 2022).

[28]   20 USC § 1412(a)(10)(c)(ii); Florence County Sch. Dist. Four v. Carter, 510 US 7, 9-10, 11 (1993) quoting Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist., Westchester Cnty. v. Rowley, 458 US, 176, 207 (1982); see Forest Grove Sch. Dist. v. TA, 557 US 230, 247 (2009) (confirming the Florence County holding applies to the reauthorization of the IDEA); Norton Sch. Comm. v. Mass. Dept. of Ed., 768 F. Supp. 900, 907 (D. Mass. 1991).

[29]   See Diaz-Fonseca v. Puerto Rico, 451 F.3d 13, 31 (1st Cir. 2006).

[30]   Burlington, 471 US at 370.

[31]   Forest Grove, 557 US at 246 quoting Burlington, 471 US at 370-71. 

[32]   Florence County, 510 US at 15. 

[33]   Doe v. Portland, 30 F.4th at 91-92, 94 (no placement pending appeal or prospective placement ordered where subsequent IEP found to be appropriate, despite approving a unilateral placement for a prior FAPE denial, reasoning that ruling otherwise would “…. mean that even when school districts take actions to come into compliance with the IDEA and provide students with a new IEP providing a FAPE, as happened in this case, any past denial of a FAPE … that the hearing officer determines should be reimbursed as an equitable matter will have far-reaching consequences”); A.W. ex. rel. B.W. v. Bd. of Ed. Of Wallkill Cent. Sch. Dist., 2015 WL 3397936 (N.Dist. NY, 2015) (no stay put ordered where hearing officer found unilateral placement appropriate for one year but inappropriate for next two years and awarded reimbursement for only the first year); see In Re: Framingham Pub. Sch. BSEA No. 2312178, 30 MSER 65(Decision, Mitchell, 2024) (“Districts retain the right, long recognized by the BSEA, to cure deficient IEPs in unilateral placement disputes, thereby avoiding prospective reimbursement upon the proffering of an appropriate IEP.”) (internal citations omitted); compare Sudbury, 762 F.Supp. 2d, at 268-69 (placement pending appeal was the unilateral placement where hearing officer explicitly made no findings about prospective placement at private school).

[34]   Burlington, 471 US at 369.

[35]   Id. at 374. 

[36]   Forest Grove, 557 US at 247 (remanding to the Court of Appeals for considerations of the equities related to a reimbursement analysis holding that “When a court or hearing officer concludes that a school district failed to provide a FAPE and the private placement was suitable, it must consider all relevant factors … in determining whether reimbursement for some or all of the cost of the child’s private education is warranted”);  see Dallas Independent School Dist. v. Woody, 865 F.3d 303 (5th Cir. 2017) (Temporally limiting the reimbursement entitlement to begin as of the date the District should have offered a FAPE, but not earlier). 

[37]   In Re: Student and Arlington Public Schools BSEA #2503543 (Ruling on Arlington Public School’s [Partial] Motion to Dismiss, Kantor Nir, September 30, 2024).

[38] T.R. v. Kingwood Twp. Bd. of Educ., 205 F.3d 572, 580 (3d Cir. 2000) [additional internal citations omitted].

[39] See, e.g., ManchesterEssex Reg’l Sch. Dist. Sch. Comm. v. Bureau of Special Educ. Appeals of The Massachusetts Dep’t of Educ., 490 F. Supp. 2d 49, 54–55 (D. Mass. 2007) (“[a]s a matter of law, the School District was entitled to refuse the unapproved and unaccredited program for D.T.’s IEP”) [additional internal citations omitted].

[40] See Manchester-Essex Reg’l Sch. Dist. Sch. Comm., 490 F. Supp. 2d at 54.

[41] Blank, 420 Mass. at 407.

[42]   Florence County, 510 US at 15; Burlington, 471 US at 370-71 (“reimbursement merely requires the Town to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper IEP.  Such a post hoc determination of financial responsibility was contemplated in the legislative history: “If a parent contends that he or she has been forced, at that parent’s own expense, to seek private schooling for the child because an appropriate program does not exist within the local educational agency responsible for the child’s education and the local educational agency disagrees, that disagreement and the question of who remains financially responsible is a matter to which the due process procedures established under [the predecessor to § 1415] appl[y]”. (internal citations omitted) (emphasis in original).”); see Forest Grove, 557 US at 246 quoting Burlington, 471 US at 370-71.

[43]   Specifically, the language is: “[a]n administrative decision in favor of a unilateral change of placement to private school by parents can constitute “agreement” by the state to that placement for purposes of the stay-put provision.”  Doe v. Portland, 30 F.4th at 91; 34 C.F.R. citing § 300.518(d) (“If the hearing officer in a due process hearing conducted by the SEA or a State review official in an administrative appeal agrees with the child’s parents that a change of placement is appropriate, that placement must be treated as an agreement between the State and the parents [for purposes of determining placement pending administrative or judicial appeals]”) and Burlington, 471 U.S. at 372; see 20 USC 1415(j).

[44]   The instant matter only challenges IEPs issued prior to Parents placing P.J. unilaterally, however.

[45]   Doe v. Portland, 30 F.4th at 94.

[46]   Id. at 93.  Moreover, although Sudbury also involved a dispute over a unilateral placement at the Carroll School, at the time that matter was decided, the Carroll School was an approved not an unapproved private school.  Sudbury, 762 F.Supp.2d at Ftnt 6.

[47]   Sudbury, 762 F.Supp.2d at 268-69 (“If prospective placement had been granted at The Carroll School, Sudbury would had have (sic) to appeal that placement in this Court in order to change the determination. Instead, Sudbury has proposed an IEP for 2010–2011, which has been rejected by Parent and must be the subject of a separate action.  I therefore find that, … [the hearing officer’s] decision constituted an agreement between the state and Parent regarding Student’s placement and pending further proceedings…”); see 20 USC 1415(j); 34 CFR 300.518(d).

[48]   Yorktown, 990 F.3d at 163-164, 173.

[49]   Although Parents do not identify the law they refer to, presumably it is universal free school meals program in the Commonwealth that has been funded for several years, including the upcoming school year.

[50]   20 USC 1401(26)(A); 34 CFR 300.34; see 603 CMR 28.02(18) applying the same definition to “related services” in Massachusetts as used in the IDEA.

[51]   Fry, 580 US at 167-68.

[52]   See In Re: Student and Arlington Public Schools BSEA #2503543 (Ruling on Arlington Public School’s [Partial] Motion to Dismiss, Kantor Nir, September 30, 2024) (also dismissing with prejudice claims for lunch reimbursement as being outside the BSEA’s jurisdiction and not part of the “special education and related services” eligible students are entitled to receive a FAPE); In Re: Springfield Pub. Schs., et. al., BSEA #2309351, 29 MSER 154 (Ruling, Mitchell, 2023).

[53]  Fry, 580 US at 167-68; In Re: Student & Quincy Pub. Sch. and Dept. of Elementary and Secondary Education, BSEA #2408249, 30 MSER 176 (Ruling, Mitchell, 2024); In Re: Springfield Pub. Schs., et. al., BSEA #2309351, 29 MSER 154 (Ruling, Mitchell, 2023); In Re:  Springfield Pub. Schs., BSEA #2203555, 28 MSER 111 (Ruling, Berman, 2022) quoting Globe Newspaper Co., 421 Mass. at 586; In Re: Holyoke Pub. Sch. and Jay, BSEA #1800619, 24 MSER 20 (Ruling, Oliver, 2018).”

[54]   20 USC 1415(i)(3)(B).

[55]   In Re: Student and Arlington Public Schools BSEA #2503543 (Ruling on Arlington Public School’s [Partial] Motion to Dismiss, Kantor Nir, September 30, 2024) (quoting Zipperer v. Sch. Bd. of Seminole Cnty., Fla., 891 F. Supp. 583, 586 (M.D. Fla. 1995), vacated sub nom. Zipperer v. Sch. Bd. of Seminole Cnty., Fla., 111 F.3d 847 (11th Cir. 1997) [additional internal citations omitted] and Bd. of Educ. of Oak Park v. Nathan R., 199 F.3d 377, 381 & n.10 (7th Cir. 2000) [additional internal citations and quotations omitted]).

[56]   Id., citing Arlington Cent. Sch. Distr. Bd. of Educ. v. Murphy, 548 U.S. 291, 297 (2006) (“[t]he governing provision of the IDEA, 20 U.S.C. § 1415(i)(3)(B), … provides for an award of ‘reasonable attorneys’ fees,’ this provision does not even hint that acceptance of IDEA funds makes a State responsible for reimbursing prevailing parties for services rendered by experts.”)

Updated on October 23, 2024

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