COMMONWEALTH OF MASSACHUSETTS
DIVISION OF ADMINISTRATIVE LAW APPEALS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Parent and Student v. Springfield Public Schools
BSEA #2309351
RULING ON MULTIPLE MOTIONS
This matter comes before the Hearing Officer on the Springfield Public Schools’ (Springfield’s or District’s) Motion to Clarify Issue for Hearing (Motion to Clarify), filed with the BSEA on July 12, 2023, seeking to have the Hearing Officer revise a previously identified issue for Hearing. This matter also comes before the Hearing Officer on Parent’s Motion to Reconsider Data Monitoring and Enforcement by Springfield (Motion to Reconsider), filed with the BSEA on July 25, 2023, seeking to have an issue previously dismissed in my June 12, 2023 Ruling on Motions to Dismiss reconsidered for inclusion as a viable issue in this matter. This matter further comes before the Hearing Officer on Springfield Public Schools’ Motion for Protective Order Relative to Parent and Student Subpoena Requests (Motion for Protective Order) filed with the BSEA on July 26, 2023 seeking a protective order relative to testimony subpoenas issued to the District’s Superintendent, Daniel Warwick and to a Supervisor in the Problem Resolution System (PRS) department of the Department of Elementary and Secondary Education (DESE), Paula Twomey, at the request of Parent and Student. Finally, this matter comes before the Hearing Officer on the Department of Elementary and Secondary Education’s Motion to Vacate or Quash Subpoena (Motion to Vacate or Quash), filed with the BSEA on August 14, 2023, also seeking to quash or vacate the testimony subpoena issued to Ms. Twomey.
For the reasons articulated below, the Motion to Clarify is DENIED, the Motion for Reconsideration is DENIED, and both the Motion for Protective Order and the Motion to Vacate or Quash are ALLOWED.
RELEVANT PROCEDURAL HISTORY[1]
On June 12, 2023, I issued a Ruling on Motions to Dismiss, dismissing several claims brought by Parent and Student in their Amended Hearing Request filed with the BSEA on May 2, 2023[2], dismissing with prejudice all but two claims from this Amended Hearing Request, as well as dismissing with prejudice all parties other than the Springfield Public Schools as respondents in this matter. Included in the issues dismissed were all issues involving allegations about the District’s “submission of ‘improper sims data’ or ‘enrollment’ information to DESE” that allegedly resulted in Student’s ineligibility for a competency determination waiver of the MCAS graduation requirements from DESE[3]. The issues remaining for Hearing were set forth to be:
The wording of these issues was taken from the wording of claims made by Parent and Student in the Amended Hearing Request, revised to reflect only those portions of the stated issues in the Amended Hearing Request that were not otherwise dismissed[4]. All claims so dismissed were also noted to be dismissed “with prejudice”, which was explained to be the final agency action of the BSEA as to these dismissed claims[5].
On June 28, 2023, the Parties participated in a Pre-Hearing Conference. During this ConferenceParent confirmed that Student turned 22 on April 6, 2022, and also agreed that the Amended Hearing Request’s reference to a “highly qualified teacher” in issue “b”, above, was intended to mean a “licensed Biology and/or licensed special education teacher” to tutor Student in preparing to take the Biology MCAS. Given this clarification, at the conclusion of this event, the Parties were advised that a further Order would issue containing revised language for issues “a” and “b” based upon Parent’s clarification, and the Parties would have the opportunity to request revisions to the revised statements, should they seek a further adjustment to the revised wording.
Thereafter, on June 28, 2023, a Pre-Hearing Order was issued reflecting the agreements of the Parties made during the Conference, including the clarifications provided to the issues for Hearing, revised as follows:
On July 12, 2023, the District filed the Motion to Clarify seeking to further revise the wording of issue “a”, only. Specifically, the District seeks to revise issue “a” as follows (revisions underlined): “Whether Student was discriminated against or not provided with reasonable accommodations he was entitled to per his IEP dated 4/13/21 to 4/5/22 and any rejections/acceptances of said IEP between May 2, 2023 and April 5, 2022, in violation of Section 504 and the Rehabilitation Act of 1973.” According to the District, it considers the requested revisions to be a “wordsmith” edit to issue “a”, that provides more clarity to this issue.
The District contends this revision is necessary as it has “the right to know precisely what the issues are for hearing prior to the start of the hearing so that it may adequately prepare and, not having this information, prejudices the District in material and substantial ways.” Further, the District suggests that its proposed clarification is sought “for the sake of fairness and expediency and to ensure an organized hearing, without the need for constant interruptions as the parties and Hearing Officer scramble to review notes of the 3-hour Pre-Hearing call (sic), and objections”.
The District refers to the Hearing Rules for Special Education Appeals (BSEA Hearing Rules) I(B) in support of its position which requires that Hearing Requests contain “nature of the disagreement, including facts relating to such disagreement”.
On July 14, 2023, the Parties participated in a Conference Call, wherein, among other things, they discussed the need to postpone the Hearing due to the unavailability of a potential witness on the then current Hearing dates, and so as to provide sufficient time for potential Motions to be filed and Rulings on suchpotential Motions to issue. Ultimately, upon written request, the Hearing was postponed to September 22 and 25, 2023 for good cause on July 24, 2023 by virtue of a Ruling on District’s Unopposed Motion to Postpone Hearing.
On July 19, 2023, Parent and Student filed an Opposition to District’s Motion to Clarify Issues, objecting to the proposed revision of issue “a”[6], as the District should not be able to “write the issues [for hearing] when they did not file the due process hearing and I cannot agree to their request and will not be bullied to do so through there (sic) tantrums. The district is well within their right to file a hearing request on their own issues.” Parent also included as a gesture of “good faith” towards the District, twelve separately numbered allegations of “some but not a whole list of the discrimination by Springfield”. Finally, Parent proposed her own revised wording to the issues for hearing that, among other changes, added an issue “c”, and expanded the ending timeframe to “May 10, 2022”, as, according to Parent, May 10, 2022, was the last day Student attended the AIC College Steps program[7].
On July 24, 2023, the BSEA issued five (5) testimony subpoenas at Parent and Student’s request, including testimony subpoenas to the Daniel Warwick, the District’s Superintendent of Schools and Paula Twomey[8], PRS Supervisor for DESE.
On July 25, 2023, Parent filed the Motion to Reconsider seeking to have the issue of the District’s alleged “submission of ‘improper sims data’ or ‘enrollment’ information to DESE” reconsidered and included as an issue for hearing in this matter. While Parent recognizes that “the Covid-19 modified CD is available to all students and outside of the BSEA’s jurisdiction”, she contends that pursuant to “part B section 618, exiting, graduation data is directly under the BSEA’s Jurisdiction (sic) therefore (sic) must be included in the Due Process Hearing because is (sic) resulted in a Denial of FAPE for [Student]”. Parent relied upon numerous provisions in the IDEA and its implementing regulations relating to the State Educational Authority’s (SEA’s) responsibility for collecting, examining and reporting to the federal government data pertaining to both Part B (education of all children with disabilities) and Part C (infants and toddlers with disabilities) of the IDEA as well as the SEA’s general supervision responsibilities under the IDEA. Parent also attached the July 24, 2023, cover letter issued by the United States Department of Education Office of Special Education and Rehabilitative Services (OSERS) with its updated guidance on the general supervision requirements of SEAs under the IDEA.
On July 26, 2023, the District filed Springfield Public Schools’ Opposition to Parent and Student’s Motion to Reconsider Data Monitoring and Enforcement By Springfield. The District contends that the argument contained in the Motion to Reconsider is “completely unrelated to the issue of how student was coded while attending College Steps”. The District further argues that the claim Parent seeks to have reconsidered was dismissed “with prejudice” and pursuant to BSEA Hearing Rule XVI(A), this means that “… the issues litigated and/or raised in the hearing request are closed and cannot be reopened/relitigated in subsequent cases before the BSEA”. Further, the District submits that the Parties discussed the impact and inability for reconsideration of BSEA dismissals “with prejudice” during their July 14, 2023, Conference Call, and this was also reiterated in footnote 4 of the Ruling on District’s Unopposed Motion to Postpone Hearing issued on July 24, 2023.
Also on July 26, 2023, the District filed the Motion for Protective Order, seeking a protective order for the subpoenas issued to Superintendent Warwick and Ms. Twomey. According to the District, Superintendent Warwick has no involvement “in any way” with the issues for a Hearing, has “no personal knowledge of Student” and has not been involved in or responsible for “implementing any of the services or accommodations [or] … making any educational decisions for Student.” Additionally, as to Parent’s indication during a Conference Call that Superintendent Warwick was copied by Parent to emails she sent about Student, the District contends that there are other witnesses who “are much better situated to offer relevant testimony” than Superintendent Warwick. Finally, the District notes that in a prior matter involving the same parties (identified previously in the Ruling on Motions to Dismiss as “Ollie II”), a subpoena issued to Superintendent Warwick was quashed by that Hearing Officer as Superintendent Warwick’s “connection to the issues before [her] [wa]s too attenuated”.
As to Ms. Twomey, the District contends that no offer of proof has been made as to her relevancy as a witness. However, the District acknowledges that Ms. Twomey co-authored a PRS finding of non-compliance relative to implementation of Student’s IEP issued on October 29, 2021 that ordered the District to provide certain compensatory services to Student. The District argues that this finding of noncompliance “speaks for itself and can be entered into evidence if deemed relevant[, h]owever Ms. Twomey’s testimony is not required.”
To date, no opposition has been filed by Parent or Student to the Motion for Protective Order.
On August 14, 2023, DESE filed the Motion to Vacate or Quash, also seeking to vacate or quash the subpoena issued to Ms. Twomey. According to DESE, Ms. Twomey does not have any “relevant testimony which would impact the BSEA hearing”. DESE contends that it is not a party to the hearing, and Ms. Twomey’s involvement with the parties was “very limited” consisting of “oversee[ing[ the processing of the state complaint that the Parent had filed with PRS against the District.” DESE agrees with the District that the October 29, 2021 PRS finding letter “speaks for itself” and can be entered as evidence without the need for Ms. Twomey’s testimony. Moreover, DESE submits that under 603 CMR 28.08(2), PRS findings and orders “are not reviewable” by the BSEA.
DESE also argues that the testimony of Ms. Twomey imposes an undue burden on both her and DESE’s PRS Office, particularly given Ms. Twomey’s role as a PRS Supervisor and that the hearing is scheduled to occur over 2 days in September. DESE explains that September is “historically a particularly busy time for PRS including a noticeable increase in complaints filed during the month …”. According to DESE, having Ms. Twomey testify would be “an inefficient use of valuable public time and resources, where such resources are better used to resolve pending PRS complaints.”
To date, no opposition has been filed by Parent or Student to the Motion to Vacate or Quash.
Neither Party has requested a Hearing on any of the Motions addressed in this Ruling. As neither testimony nor oral argument would advance my understanding of the issues involved, I issue this Ruling without a Hearing, pursuant to BSEA Hearing Rule VII(D).
LEGAL STANDARD
Jurisdiction of the BSEA
As I previously set forth in the Ruling on Motions to Dismiss, 20 USC §1415(b)(6) grants parties the right to file timely complaints (with the state educational agency designated to hear 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”[9]. 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”.
Thus, parents and students in this state who disagree with a school district’s position on any issue that are within the jurisdiction of the BSEA to consider can file a Hearing Request setting forth the “nature of the disagreement including facts relating to such disagreement”[10]. However, only issues set forth in the Hearing Request can be pursued, as “the party requesting a hearing shall not be allowed to raise issues at the hearing that were not raised in the hearing request unless the other party agrees, or the hearing request is amended in accordance with state and federal law”[11].
Reconsideration
The IDEA provides that due process hearing decisions are “final”[12]. According to BSEA Hearing Rule XII(B), entitled “Finality of Decision”, the decision of a BSEA Hearing Officer is “the final decision of the BSEA and is not subject to further agency review. Motions to reconsider … are not permitted” (emphasis added). Moreover, dismissals of issues “with prejudice” means that “the issues litigated and/or raised in the hearing request are closed and cannot be reopened/relitigated in subsequent cases before the BSEA”[13]. The Massachusetts Administrative Procedure Act requires that all decisions of administrative agencies be in writing or stated in the record[14]. Additionally,
“The decision shall be accompanied by a statement of reasons for the decision, including determination of each issue of fact or law necessary to the decision, ….. Parties to the proceeding shall be notified in person or by mail of the decision; of their rights to review or appeal the decision … before the courts, …; and of the time limits on their rights to review or appeal….”[15].
In compliance with these requirements, the BSEA provides a document entitled Effect of Final BSEA Actions and Rights of Appeal, with all decisions it issues, including whenever some or all of a matter is dismissed “with prejudice”, as was the case in the instant matter.
Subpoenas
The standard for admissibility of evidence in BSEA proceedings is relevancy and reliability[16]. Evidence presented during a hearing takes the form of written documents and oral sworn testimony. To ensure a witness will provide testimony during a due process hearing, parties can request that a testimony subpoena issue[17]. However, pursuant to BSEA Hearing Rule VII(C),
“A person receiving a subpoena may request that a Hearing Officer vacate or modify the subpoena. A Hearing Officer may so do upon a finding that the testimony … [is] not relevant to any matter in question or that the time or place specified for compliance … imposes an undue burden on the person subpoenaed”[18].
Guided by this legal authority, I turn to the pending Motions.
APPLICATION OF LEGAL STANDARDS
1. Motion to Clarify
While both Parties were offered the opportunity to seek revision of the wording of the issues for hearing as they were revised in the June 28, 2023, Pre-Hearing Order, I do not find that the revision to issue “a” proposed by the District or the revisions to both issues “a” and “b” and the addition of an issue “c” proposed by Parent and Student are “wordsmithing”. Rather, I find all the proposed revisions to consist of requests for substantive changes to the issues. The District’s proposed revision substantively changes issue “a” by limiting it to any rejections or acceptance of a specifically identified IEP that Parent and Student made during the dates that apply to issue “a”, while Parent and Students’ proposed revisions substantively change issues “a” and “b” by extending the timeframes already established for these issues from April 5, 2022 to May 10, 2022, and by adding a new third issue, referred to as issue “c”.
While the District is correct that it has the right to know what the issues are prior to the start of a Hearing, this has already occurred in this matter, by virtue of the statement of the issues as revised and set forth in the Pre-Hearing Order. Knowledge of what the issues are is not synonymous with a right of the non-moving party to specify the wording of the issues without the filing party’s agreement.
The District contends that it will not be able to adequately prepare for the hearing and is prejudiced by not knowing “precisely” the “definition of what reasonable accommodations the Parent and Student allege were not delivered to the Student and what the basis was for the allegation (such as whether it stemmed from the IEP or another source)”. I disagree that this level of specificity is required or necessary. Other procedural protections exist to BSEA proceedings that the District has and can utilize to ensure that it is able to fully defend any evidence or testimony Parent presents at the hearing on issue “a” (such as challenging the sufficiency of a claim that is deemed too “vague” under BSEA Hearing Rule I(E), seeking to dismiss any issues that are outside the jurisdiction of the BSEA under BSEA Hearing Rule XVI(B)(1), objecting to the presentation of information not shared with the District at least five (5) business days prior to the Hearing under BSEA Hearing Rules VIII(A) and X(A)(6), examining and cross-examining witnesses under BSEA Hearing Rule X(A)(5), objecting to evidence or testimony that is not related to either of the identified issues, and presenting rebuttal evidence or testimony, if appropriate). I agree with Parent that the issues for Hearing must be as presented by the party filing a Hearing Request. It is not appropriate for a responding party to make substantive changes to these issues, absent the agreement of the filing party. No such agreement has been made in this case and no procedural option exists for the District to reword an issue for hearing without the agreement of the filing party. The District’s proposed revision to issue “a” is therefore DENIED.
Parent’s and Student’s requested revisions to the revised issues for hearing are also DENIED, as they consist of claims that have been either dismissed “with prejudice” or were never raised in the Amended Hearing Request. As further discussed infra, claims already dismissed “with prejudice” cannot be reconsidered. Moreover, claims not included in the Amended Hearing Request cannot be raised via opposing the District’s Motion to Clarify. The only procedural way for new claims to be brought in the instant matter is through the filing of a further amended hearing request, which has not occurred here.
However, while I do not agree to adopt any of the Parties’ proposed revisions in the course of reviewing claim #18 (which was the basis for issue “a”) for the purposes of this Ruling, I do find that a further revision is needed. In the Ruling on Motions to Dismiss, I advised that claim #18 was “limited in scope to any potential discriminatory action or failure to provide Student with his required reasonable accommodations while attending the AIC College Steps program between May 2, 2021, and [the day before Student turned 22 years old].” However, when setting forth issue “a” at the conclusion of that Ruling, I inadvertently failed to include the language of “while attending the AIC College Steps program”. I will take this opportunity to correct this error, and will, therefore further revise issue “a” as follows (new language underlined):
2. Motion to Reconsider
As I have already advised both verbally during the July 14, 2023, Conference Call and in footnote 4 of the July 24, 2023 Ruling on District’s Unopposed Motion to Postpone Hearing,
“The June 12, 2023, Ruling on Motions to Dismiss dispositively dismissed, with prejudice, all but these 2 issues from the Amended Hearing Request. As that was a final action by the BSEA, it is not subject to reconsideration or re-opening as to those issues dismissed with prejudice. Notice as to this effect was attached to the Ruling and sent to the Parties via certified mail with the Ruling.”
Nothing in the instant Motion to Reconsider changes my position on this, as a final agency action of the BSEA is not eligible for reconsideration[19]. As such, Parent and Student’s Motion to Reconsider is DENIED with prejudice[20].
3. Challenged Subpoenas
Parent and Student have not presented any argument as to any relevant testimony that either Superintendent Warwick or Ms. Twomey may provide regarding the issues for hearing in this matter. While it may be the case that Parent copied Superintendent Warwick on emails she sent to the District, being copied on an email does not confer witness relevancy on such person for a due process hearing. As Superintendent Warwick does not have independent knowledge, or personal involvement with the issues for hearing, I do not find him to be able to offer relevant evidence in this matter, and his subpoena is hereby vacated.
Further, as Ms. Twomey’s only involvement with the Parties was with regard to a PRS complaint filed by Parent against the District, her testimony is also irrelevant, particularly as the PRS finding letter can be entered into evidence as an exhibit on its own, and “speaks for itself” as both the District and DESE contend. I further agree with DESE that the BSEA has no jurisdiction to review a determination or finding issued by PRS. Thus, the subpoena issued to Ms. Twomey is also vacated.
For these reasons, the Motion for Protective Order and the Motion to Vacate or Quash are hereby ALLOWED.
ORDER
The Motion to Clarify is DENIED. The Motion to Reconsider is DENIED. The Motion for Protective Order and the Motion to Vacate or Quash is ALLOWED. The testimony subpoenas issued to Superintendent Warwick and Paula Twomey are hereby vacated, accordingly, and the matter will proceed as follows:
- The Hearing will take place on September 22 and 25, 2023 at 10:00 a.m., virtually[21]. A virtual link will be provided separately.
- The Hearing will be stenographically recorded, and an audio recording will also be made.
- The Parties will participate in a further Conference Call on September 8, 2023, at 10:00 a.m. The Parties are instructed to call the following phone number: 1-857-327-9245 at that time, and then enter the following passcode when prompted: 133 966 91#.
- Exhibits and witness lists are due by the close of the business day on September 15, 2023. One (1) paper copy of each submitted Exhibits and Witness list will need to be provided for Parent and Student, collectively; one (1) paper copy of each submitted Exhibits and Witness list will need to be provided for Springfield Public Schools; one (1) paper copy of each submitted Exhibits and Witness list will need to be provided to the Hearing Officer; and, only if requested, one (1) paper copy of each submitted Exhibits and Witness lists will need to be provided for the Stenographer.
- The issues for Hearing are as follows:
The Parties are reminded that any requests for postponement must be in writing and specify the reasons for and length of the postponement sought. Should the parties resolve the matter prior to the Hearing, the moving party shall submit a withdrawal of the Hearing Request.
By the Hearing Officer,
/s/ Marguerite M. Mitchell
Marguerite M. Mitchell
Date: September 5, 2023
[1] The procedural history of this matter has been set forth in prior Rulings and is not repeated here, unless relevant to the underlying Motion. Specifically, the Parties are directed to refer to the Ruling on Challenge to Sufficiency of Hearing Request issued on April 18, 2023, the Ruling on Challenge to Sufficiency of Amended Hearing Request issued on May 16, 2023, the said Ruling on Motions to Dismiss, and the Ruling on Springfield Public Schools’ Motion to Recuse Hearing Officer issued on August 29, 2023.
[2] This is dated May 1, 2023, but as it was filed after the close of the business day on May 1, 2023, it is deemed filed on May 2, 2023.
[3] The Parties are advised to refer to Section II on pages 24-25 of the Ruling on Motions to Dismiss, incorporated herein by reference, wherein I analyzed all claims relating to the allegations involving the District’s submission of incorrect “data” to DESE (claim #s 3, 4, 5, 7, 8 and 21) and explained why these claims were being dismissed in their entirety with prejudice.
[4] Specifically, the wording for issue “a” was taken from claim #18 in the Amended Hearing Requests’ that was originally identified in the Ruling on Motions to Dismiss to be that “Student was “discriminated against” and not provided with reasonable accommodations on the “AIC college steps campus” in violation of “ADA and 504 and title vi (sic) laws”. The wording for issue “b” was taken from claim #22 in the Amended Hearing Requests that was originally identified in the Ruling on Motions to Dismiss to be that “SPS failed to implement Student’s IEP provisions relating to providing him with tutoring for the biology MCAS and ‘providing all opportunities for a diploma’”. In the Ruling on Motions to Dismiss, incorporated herein by reference, at Section VI, pages 30-31, I analyzed both claims #18 and #22, and concluded that only a limited portion of both claims survived for Hearing in this matter. All other portions of these claims were dismissed with prejudice.
[5] Further, attached to the Ruling on Motions to Dismiss was a document entitled “Effect of Final BSEA Actions and Rights of Appeal”. Both the Ruling and the attachment were sent to Parent and Student via certified mail, return receipt accepted. According to the signed return receipt, Parent and Student received this mailing on June 20, 2023.
[6] The majority of this Opposition was focused on arguments pertaining to issues that had previously been dismissed with prejudice in this matter in my Ruling on Motions to Dismiss, which is incorporated herein by reference, including claims about Student’s enrollment data being “altered” or submitted incorrectly and claims of ADA violations. Additionally, Parent refers to unspecified “discrimination” against her “separate from [Student]”. All claims in the Amended Hearing Request specific to violations of Parent’s individual IDEA and Section 504 rights (claim #s 4, 5, 6, 9, 10, 11, 13, 15, 17, and 23 against the District, and claim #s 3 and 7 against DESE) have been dismissed with prejudice. As such dismissal is a final agency action, arguments on these claims will no longer be entertained in the instant matter and I do not consider them in the instant Ruling. To the extent Parent is now raising new claims in this Opposition, this is not the appropriate process to do so.
[7] Parent’s revised issues were as follows:
“a. whether the student (sic) district treated the student with deliberate indifference amounting to discrimination (sic) discriminated against the student on the basis of disability, and denied reasonable accommodations he was entitled to between May 2, 2021, and May 10, 2022 (last day of college steps) in violation of section 504 of the Rehabilitation act (sic) of 1973; and
b. whether the student was entitled to and provided a licensed biology and or licensed teacher to support student in preparing to take the MCAS between May 2, 2021, and May 10, 2022, and if students (sic) enrollment classification would have prevented student from needing to take MCAS.
c. Discrimination against parent’s IDEA rights and 504 separate from [Student] (sic)”
[8] Parent’s subpoena request and the ensuing subpoena incorrectly spelled Ms. Twomey’s name as “Twooney”.
[9] 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”.
[10] BSEA Hearing Rule I(B)(9); see20 USC 1415(b)(6) and (7).
[11] BSEA Hearing Rule I(B) see 20 USC 1415(c)(2)(E).
[12] 20 USC 1415(i)(1)(A) “A decision made in a hearing conducted pursuant to subsection (f) or (k) shall be final, except that any party involved in such hearing may appeal such decision under the provisions of [20 USC 1415] subsection (g) and paragraph (2)”; 34 CFR 300.514(a) “A decision made in a hearing conducted pursuant to [34 CFR] §§300.507 through 300.513 or §§300.530 through 300.534 is final …”; see M.G.L. c. 30A §14 “… any person or appointing authority aggrieved by a final decision of any agency in an adjudicatory proceeding, whether such decision is affirmative or negative in form, shall be entitled to a judicial review thereof”..
[13] BSEA Hearing Rule XVI(A).
[14] M.G.L. c 30A §11(8).
[15] Id. According to the “Scope of Rules” section of the BSEA Hearing Rules, the BSEA Hearing Rules are “governed by 603 CMR 28.00, federal due process procedures and the Massachusetts Administrative Procedure Act, M.G.L. c. 30A”.
[16] 603 CMR 28.08(5)(c) “[t]he Special Education Appeals hearing officer shall have the power and the duty to … receive and consider all relevant and reliable evidence”.
[17] BSEA Hearing Rule VII; see M.G.L. c. 30A §12 “In conducting adjudicatory proceedings, agencies shall issue, vacate, modify and enforce subpoenas in accordance with the following provisions: (1) Agencies shall have the power to issue subpoenas requiring the attendance and testimony of witnesses …”.
[18] See M.G.L. c. 30A §12(4) “Any witness summoned may petition the agency to vacate or modify a subpoena issued in its name…. After such investigation as the agency considers appropriate it may grant the petition in whole or part upon a finding that the testimony, … does not relate with reasonable directness to any matter in question, or that a subpoena for the attendance of a witness … is unreasonable or oppressive or has not been issued a reasonable period in advance of the time when the evidence is requested”.
[19] See MGL c 30A §14; BSEA Hearing Rule XII(B).
[20] Moreover, I do not agree substantively with Parent’s argument that the BSEA has jurisdiction over data submitted by a school district to an SEA based upon the provisions of the IDEA to which Parent cites. Those provisions relate to the responsibilities of the SEA, not the local school district, and I have already dismissed DESE as a party in this matter “with prejudice”. Moreover, the BSEA does not have jurisdiction over any allegation that DESE is not meeting its general supervision responsibilities. Rather, as noted in the OSERS letter Parent and Student attached to the Motion to Reconsider, oversight for an SEA’s compliance with its general supervisory responsibilities is provided by OSEP.
[21] Although this will be handled separately, the Parties are reminded of their agreement to be available at 9:00 a.m. on September 22, 2023, to address the public hearing request, if necessary.