In re: Parent and Student v. Springfield Public Schools, Springfield School Committee (Including Melinda Phelps), DESE and Murphy, Hesse, Toomey & Lehane – BSEA #23-09351

COMMONWEALTH OF MASSACHUSETTS

DIVISION OF ADMINISTRATIVE LAW APPEALS

BUREAU OF SPECIAL EDUCATION APPEALS

In re: Parent and Student v. Springfield Public Schools, Springfield School Committee (Including

Melinda Phelps), DESE and Murphy, Hesse, Toomey & Lehane

BSEA #2309351

RULING ON DEFENDANTS’ MOTIONS TO DISMISS

This matter comes before the Hearing Officer on the Defendants, Springfield School Committee, Springfield Public Schools, Melinda Phelps, and Murphy, Hesse, Toomey & Lehane, LLP’s Motion to Dismiss and the Department of Elementary and Secondary Education’s Motion to Dismiss (collectively Motions to Dismiss or Motions) filed with the BSEA on May 11, 2023, and May 15, 2023[1], respectively.  As grounds for its Motions, the Defendants assert that the BSEA lacks jurisdiction over the claims made by Parent and Student in the Amended Hearing Request, that many of the claims are beyond the allowable statute of limitations, that claims are precluded due to having been previously adjudicated in prior BSEA due process proceedings, and that, as to all of the Defendants, except the Springfield Public Schools, the BSEA has no jurisdiction, and they are not necessary parties in this proceeding.

For the reasons articulated below, the Motions are ALLOWED in substantial part but DENIED in limited part.  Therefore, with the exception of two limited claims that survive against Springfield Public Schools only, the remaining claims are hereby DISMISSED with prejudice.

RELEVANT PROCEDURAL HISTORY

On May 2, 2023, Parent and Student filed an Amended Hearing Request[2] alleging that the parties against whom it was filed (Springfield Public Schools, Springfield School Committee, Attorney Melinda Phelps, and Murphy, Hesse, Toomey & Lehane, LLP (School and Attorney Defendants) and the Department of Elementary and Secondary Education (DESE Defendant)) “breach[ed] the IDEA contract and (sic) false promises resulting in a denial of FAPE, ADA and 504 violations” against both Parent and Student.  The Amended Hearing Request was filed in accordance with a Ruling on Challenge to Sufficiency of Hearing Request issued on April 18, 2023 (April Sufficiency Challenge Ruling), wherein I determined that the initial Hearing Request was insufficient[3].

Parent filed the Amended Hearing Request on her own behalf and also as the Advocate for Student, whom she notes to be 23 years old.  According to the allegations contained in the Amended Hearing Request, Parent is a professional educational advocate[4].

The Amended Hearing Request[5] contains the following claims on behalf of Parent and Student.  Except as otherwise noted, the Amended Hearing Request advises that these claims arose between June 2019 “the first date that Springfield changed [Student’s] enrollment status” and May 2022[6]:

1. The Springfield School Committee (SSC), Springfield Public Schools (SPS) and the Department of Elementary and Secondary Education (DESE) committed “educational malpractice by breaching the IDEA contract and (sic) false promises resulting in a denial of FAPE, (sic) ADA and 504 violations”.

2. SPS “altered data, withheld evidence, made false claims or (sic) work product, with the sole intention of stealing away [Student’s] right to a diploma in retaliation by abusing their (sic) power and positions”.

3. DESE, despite accepting federal funds under the IDEA, failed to monitor SPS and to withhold funds from SPS since first learning in June 2019 that SPS did not comply with the IDEA by altering Student’s data.  This is an ongoing failure by DESE, as funds should continue to be withheld until SPS comes into compliance by fixing the altered data and awarding Student “the diploma he is entitled to with the modified CD”.  DESE only sent one email to SPS, at the request of Commissioner Riley, inquiring about Parent’s allegations.  This email advised SPS it did not have to respond.  Parent was not contacted about DESE’s sending this email to SPS and DESE never followed up about it with SPS. Further DESE violated its duty to investigate complaints and oversee SPS, in not responding to over 100 requests from Parent to investigate “SIMS data fraudulently reported” by SPS, consisting of “approximately 50 voicemails; (sic) dozens of emails (sic) spoke to legal”.  DESE’s inactions “directly violated the IDEA assurances resulting in a denial of FAPE and other constitutional rights of [Parent] and [Student]”.

4. SPS improperly coded Student as a “life-skill” “non-diploma track” student despite documenting in Student’s IEP that he was scheduled to receive a diploma, and improperly withheld this information from Parent and Student, in retaliation for Parent and Student filing complaints against SPS.  Specifically, on at least 6 occasions between August 2019 and May 2022, Student was enrolled and unenrolled yearly and “his diploma track sims data were changed to a life skills non-diploma track student [r]esulting in [Student] not receiving the covid 19 modified CD diploma.”  Student’s placement was improperly changed to the life skills program called Springfield Transitions Academy, a “life skills MCAS ALT program”.  Further, SPS, Attorney Melinda Phelps, Murphy, Hesse, Toomey & Lehane, LLP (MHTL), and Attorney Alisia St. Florian knew of these enrollment changes since “at least August 17, 2020 (during the [prior BSEA hearing known as] Ollie Reichbach)”.  However, Parent “cannot say for certain that Attorney St. Florian had knowledge in June 2019 … [but she] did know August 17, 2022”.  Parent is “quite certain of Attorney Phelp’s involvement” in altering the enrollment data since June 2019.

5. SPS denied Parent and Student “meaning (sic) participation into the decision to change [Student’s] enrollment data” and “intentionally interfered with [Parent’s] rights to parental participation in the IEP process”.  Moreover, although SPS was reporting false enrollment information to DESE since June 2019, no mention of this was made at Student’s Team meetings in April 2019 when Student’s placement was changed from “Renaissance” or in June 2019 nor in the resulting IEPs.  Rather, the resulting IEPs that were found to “reasonably calculated” by Hearing Officer Reichbach in a prior BSEA due process hearing, provided for Student to receive academic services in reading and written expression from Pioneer Valley Tutoring, which is an agency separate from but located on the AIC campus.  Additionally, SPS was to provide Student with speech and assistive technology services.

6. SPS “personal (sic) … breach[ed] confidentiality, lie[d] to judges or abuse[d] their power by retaliating against [Student] and [Parent] for participating in protected activities (sic) these all resulted in denials of FAPE”.

7. DESE procedurally violated the IDEA in failing to investigate violations presented to it by Parent and Student pertaining to incorrect data having been given to DESE about Student that “took away his right to the modified CD”.  These violations resulted in a denial to both Parent and Student of their rights to meaningfully participate in “all decisions affecting [Student]” and denied Student “his substantive right to a FAPE”.

8. SPS “staff” acknowledged in unspecified “emails” that “the data is incorrect and should be fixed, however they lied about it when asked and attempted to cover it up”.

9. SPS withheld evidence in prior BSEA hearings (referred to as “Ollie I and Ollie II”) that “was just recently discovered” in 2022 but was available but not produced in discovery in these prior matters relating to the “multiple unenrollments and change of placements they reported to DESE SIMS in Ollie II”, thereby prohibiting Parent from “exercis[ing her] rights in [that] hearing prior because [she] was unaware of them until recently.”  Moreover, the discovery produced in these matters was overly redacted under claims of “work product” when in fact that privilege did not apply to all that was redacted.

10. Dr. Mary Ann Morris, the special education administrator for SPS, emailed confidential documents relating to Student’s MCAS, that provided personally identifiable information about Student to her husband and daughter from her work email in retaliation for Parent requesting services for Student.  This email was also a document that included a Hearing Officer in a confidential hearing.  SPS took no action towards Dr. Morris for this disclosure, instead “retaliate[ing] against” Parent and Student for “reporting the breaches of confidentiality”.

11. Attorney St. Florian identified Parent “in retaliation as a party in a confidential hearing in a separate [BSEA] Due Process Hearing” before Hearing Officer Kantor Nir and also submitted Student’s binder cover letter in a different student’s due process hearing that included information about Parent and Student.

12. Attorney Phelps attended a May 2019 meeting without notice to Parent or Student, along with “Kim Wells CSO Officer”.

13. Between August 2019 and May 2022, several IEP Team meetings and other meetings occurred regarding Student, wherein Parent was forced by Attorney St. Florian and Attorney Phelps to disclose her disabilities when she attempted to access reasonable accommodations, in retaliation for Parent’s participating in “protected activities” under the IDEA.

14. Attorney St. Florian and Attorney Phelps “knowingly committed perjury” and “knowingly provided false statements in Ollie II” to Hearing Officer Byrne relating to the relationship between the Springfield Public Schools and the Springfield Empowerment Zone to prevent a necessary witness from testifying” that resulted in “denials of FAPE, and violations of ADA and Section 504 against both [P]arent and [S]tudent”.  The witnesses were allegedly Student’s most recent special education teachers, and although one of them, Ms. Ewing, was not licensed, she was found in Ollie I to be “knowledgeable”.  Specifically, the lies made “on the record” in Ollie II were that the Springfield Public Schools and the Springfield Empowerment Zone are separate entities, and thus the Attorneys were unable to require these teachers to testify at that hearing, although the empowerment zone was present and represented by both Attorneys in a separate BSEA due process hearing on a different student (Student v Springfield #2208440) and Dr. Morris testified in that separate hearing that she was the Director of Special Education for both SPS and the Springfield Empowerment Zone. [DESE Deputy Commissioner] Russell Johnston also “confirmed regarding Springfield and the Empowerment Zone are intertwined and not completely separate”.  Additionally, both Attorneys falsely alleged that “both teachers left the district so they had no way of have (sic) them appear at hearing”.  These false statements caused Hearing Officer Byrne to rule in favor of the District in the prior matter.

15. In March 2023, SPS Supervisor Michelle Serafino told a parent during a taped IEP Team meeting about that parent’s child that Parent has “outside disputes referring to [Student]”, causing Parent to have to explain to her client (for whom she was acting as an advocate) that she and Student have a disability.  Parent’s client then advised she was in “fear that Springfield was retaliating to her having [Parent] as her advocate interfering with [Parent’s] livelihood”.

16. The attorneys for the Defendants engaged in improper ex parte communications with Hearing Officer Berman in a prior BSEA matter.

17. Parent and Student were denied their “due process right” to a “mandatory resolution meeting”.

18. 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”.

19. The School and Attorney Defendants “created an email account called ollieollie@gmail.com violating student record rights”.

20. SPS lied about who put Student’s “portfolio” together to Hearing Officer Berman in a prior BSEA matter.  SPS advised that “a teacher was not even involve (sic)” but the evidence shows a Putnam High School teacher “not only put the portfolio together but evidence shows that it was put together wrong.”  Dr. Morris was aware of the compilation errors but still submitted the portfolio resulting in a “denial of FAPE and violations of [Student’s] civil rights”.

21. SPS failed to advise Parent she had the “right to appeal to (sic) the MCAS and ask the school committee to request a waiver therefore the School Committee is being added as a party”

22. 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”.

23. Parent and Student were denied access to Student’s “educational student record including the sims” in 2021 after “Springfield’s Analyst informed [Parent that Student’s] data was incorrect”.

On May 4, 2023, a Notice of Amended Hearing was issued establishing the new Hearing date as June 6, 2023.  On May 11, 2023, the School and Attorney Defendants filed a Sufficiency Challenge to the Amended Hearing Request, asserting noncompliance with the orders in my April Sufficiency Challenge Ruling.  On May 16, 2023, I issued the May Sufficiency Challenge Ruling finding the Amended Hearing Request to be sufficient as written. 

Also on May 11, 2023, the School and Attorney Defendants filed their Motion to Dismiss, arguing that the BSEA lacks jurisdiction to hear any of the claims in the Amended Hearing Request, and to the extent jurisdiction does exist over any claim, such claims should be dismissed due to failure to comply with the April Sufficiency Challenge Ruling. Specifically, they contend that the BSEA has no jurisdiction over SSC, Attorney Phelps or MHTL, as parties; that most, if not all of the claims relate to matters other than Student receiving a FAPE and are outside the jurisdictional authority of the BSEA under its enabling legislation; that many of the claims were previously dispositively adjudicated in prior BSEA due process proceedings and are therefore precluded from being raised and re-litigated in this matter, as the only recourse available to Parent and Student on these claims is an appeal; and that, to the extent a claim is within the BSEA’s jurisdiction, it must be dismissed as Student’s signature was not on the Amended Hearing Request as ordered by the April Sufficiency Challenge Ruling.  Additionally, the School and Attorney Defendants seek dismissal of all claims that relate to matters that occurred outside the two-year statute of limitations, particularly those pertaining to issues with “Ollie I” and “Ollie II”.  Finally, they dispute claims on behalf of Parent that are “not related to the alleged denial of Ollie’s FAPE”.

On May 15, 2023[7], the DESE Defendant filed a renewed Motion to Dismiss on its behalf, arguing that the Amended Hearing Request should be dismissed for failure to “state a claim against DESE upon which the BSEA can grant relief”[8].  Specifically, the DESE Defendant contends that the issues surrounding the alleged falsified enrollment data, improper reporting of data to DESE, and DESE’s failure to investigate these complaints, all of which contributed to Student’s inability to participate in the modified competency determination process and thereby being unable to receive a diploma, are outside the BSEA’s jurisdiction.

According to the DESE Defendant “though the consequences of the alleged error affected a student with a disability, the underlying claim does not concern the provision of FAPE to [Student]”.  The DESE Defendant notes that the modified competency determination process “applied to all public school students in the classes of 2020, 2021 and 2022” and was “not an accommodation or service intended to support only students with disabilities”.  Moreover, regardless of the legitimacy of Parent and Student’s claims about SPS sending DESE incorrect data about Student, DESE’s failure to investigate this issue, or Student’s eligibility for a modified competency determination, the Amended Hearing Request “fails to establish any obligation DESE owed to [Student] to ensure a FAPE or a relationship between DESE and [Student] that differs from DESE’s relationship with all students in Massachusetts”.

The DESE Defendant further argues that IDEA does not provide a private right of action to challenge a State Educational Authority’s (SEA’s) alleged violation of its general supervisory authority responsibilities.  In other words, the private rights of action granted to parents under Section 1415 of the IDEA do not authorize challenges to an SEA’s general supervisory obligations under Section 1412.  Finally, the DESE Defendant submits that it is not a necessary party to these proceedings, and to the extent the BSEA has jurisdiction over any claims in the Amended Hearing Request, it can grant relief without DESE’s participation as a party.

On May 22, 2023, Parent and Student filed an Opposition to the Defendants (sic) Motion to Dismiss (Opposition), contending that the SSC, Attorney Melinda Phelps and MHTL should not be considered private parties, as they are either part of a “local education agency” as defined in the federal IDEA regulations, or “third-party contractors” who indirectly receive federal funds.  As such, Parent and Student submit that the BSEA has jurisdiction over these entities and person(s).  Parent and Student also reiterated allegations specific to SSC, Attorney Phelps and MHTL, contained in the Amended Hearing Request, that they argue requires their continued involvement as parties in this matter, as well as their claim that the DESE Defendant must remain a party due to its failure to meet its general supervisory responsibilities.

On May 22, 2023, the Parties participated in an initial Conference Call, wherein, they discussed, among other things, postponing the Hearing to allow time for the instant Ruling to issue, for the Parties to participate in a Pre-Hearing Conference, and for discovery on any claims not dismissed or otherwise resolved.  On May 31, 2023, the Parties filed a Joint Request to Change Hearing Date, which was allowed by a Ruling issued on May 31, 2023.  The Hearing is currently scheduled for July 31, 2023, and August 7, 8 and 9, 2023.

RELEVANT FACTS AND SUMMARY OF PRIOR DISPOSITIVE FINDINGS AND DETERMINATIONS

To the extent specificity of the claims in the Amended Hearing Request exists, they were so noted in the summary of claims, above.  However, the Amended Hearing Request references prior due process proceedings at the BSEA (before Hearing Officers Reichbach, Byrne, Berman and Kantor Nir) that addressed claims brought previously by Parent and/or Student against SPS, most of which are currently under appeal.  I take administrative notice of these proceedings, given their reference in the Amended Hearing Request, and incorporate any dispositive Rulings or Decisions by the respective Hearing Officers from these proceedings into my analysis of the Motions, as set forth below. 

Specifically, I take administrative notice of the following prior BSEA matters: 1) the matter before Hearing Officer Reichbach, published as In Re: Springfield Public Schools and Ollie, BSEA #2007894[9], (sometimes referred to in the Amended Hearing Request as “Ollie I”) (Ollie I); 2) the matter before Hearing Officer Byrne published as In Re: Springfield Public Schools and Ollie, BSEA #2102164[10], (sometimes referred to in the Amended Hearing Request as “Ollie II”) (Ollie II); 3)  the matter before Hearing Officer Berman published as In Re Student v Springfield Public Schools, BSEA #2203555 and 2210887[11] (Ollie III); and 4) the matter before Hearing Officer Kantor Nir (involving a student than Student but where Parent appeared as an advocate) published as In Re: Student v Springfield Public Schools, BSEA #2208440, (Kantor Nir Matter) [12].

The following facts, as they are taken from prior Decisions and Rulings from prior Hearing Officers, therefore, are not in dispute and are taken as true for purposes of this Ruling, in the light most favorable to Parent and Student.

1. On February 24, 2020, Parent filed a Hearing Request against SPS, following a withdrawal of a Hearing Request previously filed on December 30, 2019, in BSEA #200476, Ollie I.

2. The issues adjudicated in Ollie I relevant to this matter, include but are not limited to[13],

a. whether IEPs with dates of 5/10/18-4/10/19 (through 10/2/18); 4/24/19 – 4/23/20 (as amended on or about 5/31/19, 9/25/19 and 2/6/20); and 4/16/20 – 4/15/21 were reasonably calculated to provide Student with a FAPE;

b. whether SPS committed procedural errors in connection with Team meetings that occurred or were scheduled to occur during April 2020, that amounted to a deprivation of a FAPE because they impeded Student’s right to a FAPE, significantly impeded Parent’s opportunity to participate in the decision-making process regarding the provision of FAPE to Student, or caused a deprivation of educational benefits; and

c. whether actions of alleged “discrimination, retaliation, threat and abuse of power” by SPS between February 24, 2018, and February 24, 2020, impacted Parent’s or Students ability to participate in IEP Team meetings.

3. On November 10, 2020, Hearing Officer Reichbach issued the Ollie I Decision, making 101 separate findings of fact, as well as conclusions of law.

4. The relevant factual findings made in Ollie I include,

a. “Ollie’s Team convened on April 24, 2019 for his three-year reevaluation. The meeting lasted approximately three hours….  According to multiple people who attended this Team meeting, it was contentious and devolved quickly, with many people talking over one another other….  Ollie, who was participating in the meeting appropriately, expressed concern about earning his diploma and getting help to understand finances.  When Dr. Morris attempted to follow up with Ollie by asking what he wanted for his future, Parent accused her of manipulating Ollie with the word ‘diploma’ and accused her of child abuse….  District personnel raised the issue of MCAS examinations.  Around this time, Ollie had passed ELA and Math retests, but he had received a Warning on the Biology retest, missing the cut off by only a few points.  Springfield had provided Ollie with a number of supports to prepare for the retest, including after-school tutoring sessions with teachers.  At this point, Springfield believed the best chance for Ollie to obtain a high school diploma, consistent with his goal to graduate and attend college and the Team’s goals for him, would be to participate in a cohort appeal.  Such an appeal permits students who have a certain grade-point average to apply to obtain credit for an MCAS examination without earning a passing score.  Parent would not consent to this option, which she viewed as a way to push Ollie out of school through ‘wrongful graduation’ before he was ready.  She and [her advocate] both wanted Ollie to have more time to work on transition skills….  Parent appeared to be upset about the prospect of services being removed.  She requested that the Team consider placing Ollie at the Riverview school on Cape Cod.  Dr. Morris refused the request, stating that such a program was too restrictive and local community college programs could provide the appropriate level of support.  The District agreed to consider the ICE program, though District personnel continued to believe it was not appropriate for Ollie, and to provide an additional year of services to include MCAS preparation, continued participation in college courses for credit, a transitional inventory, and an item analysis of adaptive assessments completed by teachers and parents to inform skill instruction in this area.  The Team agreed to reconvene to further define the following year’s services….” Ollie I, Finding of Fact (FF) #47.

b. “Following the [April 24, 2019 Team] meeting, Ollie’s Team proposed a full-inclusion IEP for the period from 4/24/19 to 4/23/20 (initial proposed 2019-2020 IEP) that included goals in Reading, Written Expression, Mathematics, Speech and Language, Social Skills, Study Skills, and Transition and listed Ollie’s date of graduation as June 2020, pending the need for further services as determined by the Team on a yearly basis….” Ollie I, FF #50.

c. “Ollie’s Team convened on September 4, 2019 to review Dr. Davis’ evaluation, which was presented by Dr. O’Neill…. Ollie did not [attend]; someone noted on the attendance sheet that he was afraid to come due to Dr. Morris.  Dr. Davis was not in attendance.  At this meeting, the Team considered her recommendations involving supports for post-secondary education.  On the basis of these recommendations, the District proposed that Ollie take one class in fall 2019 at [a local community college] through the Dual Enrollment Program and attend College Steps at American International College (AIC) for the 2020 spring semester….”  Ollie I, FF #63.

d. “Ollie’s Team reconvened on September 25, 2019 to review Ms. Ford’s speech and language testing and Ms. Sibilia’s achievement testing, and to further discuss transition services and planning….  Ollie did not attend this meeting, but [the advocate] presented the District with a statement signed by Ollie appointing her as his representative and providing permission for Springfield to release information to her. [The advocate] feels comfortable representing Ollie’s wishes at Team meetings to ensure that he is able to provide input….  The Team discussed further the proposal to place Ollie at College Steps for spring 2020, and suggested providing tutoring in the Biology MCAS, reading, written expression, and transition skills in the time between the end of the fall semester at STCC and the beginning of College Steps in the spring.  The tutoring would be offered by various special education teachers, an SLP, and a vocational counselor at the East Springfield library.”  Ollie I, FF #66.

e. “After she received Parent’s response to the [second amended] IEP [issued following the September 25, 2019 Team meeting], Ms. Malandrinos emailed [Parent] on October 30, 2019, indicating that Parent had not made clear what she was accepting and what she was rejecting.  She requested that Parent and [her advocate] review a list and clarify which of the following services she was accepting, and which she was rejecting: (1) College Steps for the 2020 spring semester; (2) Tutoring services for reading, written language, study skills, preparation to take the Biology MCAS, vocational training, and speech and language services, offered three days a week from 1:00 PM to 5:00 PM; (3) Eight hours of compensatory speech and language services; (4) an Assistive Technology screening; (5) a referral to MRC. Ms. Malandrinos indicated that once she received Parent’s response, she would schedule a meeting to discuss implementation of accepted services….  In response, Parent accused the District of attempting to graduate Ollie with what she ‘suspect[ed] are altered test scores,’ stated that he would not be taking the MCAS for at least another year.  Further, she referred to Springfield as incompetent and warned Ms. Malandrinos to be very careful in choosing staff to work with Ollie because she would ‘be at each and every session to ensure corruption or further abuse does not occur’….  On the same date, [Parent’s advocate] emailed Ms. Malandrinos, in writing that they were accepting all proposed services but, because they believed the IEP did not go far enough, they were rejecting the lack of additional programming. [Parent’s advocate] requested that all listed services be implemented, and Ms. Malandrinos responded by requesting a meeting to review services, location, and transportation options….  The District offered two possible meeting dates and notified both Parent and [her advocate] that it would be moving forward with the plan to offer tutoring at the library beginning November 11, 2019….”  Ollie I, FF #71.

f. “The Transition Planning Form (TPF) accompanying Ollie’s proposed 2020-2021 IEP erroneously lists June 2019 as his anticipated date of graduation. According to his post-secondary vision statement, Ollie would like to obtain a high school diploma and attend college, where he would like to live in a dormitory.  He is unsure about the field he wishes to pursue but would like to become independent and obtain employment once he completes post-secondary education.  The TPF indicates that Ollie’s autism impacts transition in the following areas: reading skills; receptive and expressive language skills; written expression; study skills; and transition skills.  The action plan provides that he would benefit from MCAS preparation instruction to enable him to pass the MCAS and matriculate to college to pursue a degree.  Furthermore, instruction will assist him in improving communication, reading and writing, study, and transition skills through speech and language services, specialized reading and written expression instruction, and academic support with study skills.”  Ollie I, FF #91.

5. The relevant determinations made in Ollie I include,

a. “Proposed 2019-2020 IEP.  This IEP for a full inclusion placement was dated 4/24/19 to 4/23/20 and amended 5/31/19, 9/25/19 and 2/6/20.  It covered the last few months of Ollie’s twelfth grade year at Renaissance and most of his first post-secondary year.  Parent raised several concerns about the IEP.  Specifically, she challenged … what she viewed as inadequate transition services….  Parent also objected to the Team’s proposal of a cohort appeal and MCAS tutoring….  Given the information before the Team, … his transition goal is too vague, particularly given Parent’s contention that Ollie had not received sufficient services in this area.  In light of Ollie’s expressed desire to graduate from high school and attend college, proposing both a cohort appeal and MCAS tutoring was not only reasonable, but likely required.  The Team’s decision to investigate other post-graduate options, rather than propose that Ollie continue to take dual enrollment courses, was also reasonable.  To the extent Ollie’s post-secondary year would include [community college] courses, as explained above, Parent failed to establish that paraprofessional support was required for Ollie to receive a FAPE.”  Ollie I, Discussion, Part I(C).

b. “Proposed 2020-2021 IEP.  The IEP proposed for Ollie for the period from April 16, 2020 to April 15, 2021 places him at College Steps and proposes service delivery for academic and transition goals, including reading and explicit transition instruction.  Based on all reports, Ollie is experiencing success in this program and – with the exception of speech and language, where he has established a productive working relationship with Ms. Bigda – prefers to receive services through AIC.  Although Parent objected to the District’s failure to include in the IEP [certain disabilities and services] based on the information before the TEAM, … this IEP is reasonably calculated to provide Ollie with a FAPE.  Moreover, the District’s proposal of MCAS tutoring is consistent with Ollie’s vision to graduate high school.  Its proposal for Springfield personnel to work directly with Ollie over the summer by providing tutoring in reading, written expression, and transitional skills, is an appropriate way to obtain information to inform future goal development.”  Ollie I, Discussion, Part I(D).

6. Hearing Officer Reichbach ultimately concluded, in relevant part, that

“… Parent failed to prove that the IEPs proposed for [Student] that were not fully accepted, for the period beginning February 24, 2019, were not or are not reasonably calculated to provide him with a FAPE.  Although Parent established that Springfield committed several procedural errors during the relevant time period, she did not prove that these errors amounted to a deprivation of FAPE.  Moreover, Parent did not provide that the District has in any way impeded her ability, or [Student’s ability] to participate in IEP meetings…”.

7. On September 16, 2020, Parent filed another Hearing Request, Ollie II.  The Decision issued in that matter, discussed further below, began by noting specifically that,

“[t]he Parent’s arguments, both before and during the hearing, appeared to seek a “do over” of those presented unsuccessfully during the Ollie I Hearing. This Hearing does not, may not, entertain arguments and evidence designed to challenge the factual findings and legal conclusions made by the BSEA Hearing Officer in the immediately preceding proceedings, Ollie I.”

8. The issues adjudicated in Ollie II relevant to this matter, include but are not limited to[14],

a. whether SPS denied Parent and Student a meaningful opportunity to participate in meetings on August 17, 2020, September 10, 2020, October 1, 2020, and November 20, 2020; and

b. whether a proposed IEP or revisions resulted from the August 17, 2020, and September 10, 2020, Team meetings, and if so, whether that IEP is reasonably calculated to provide a FAPE to Student.

9. On March 18, 2021, Hearing Officer Byrne issued a Decision in Ollie II making 32 separate findings of fact, as well as conclusions of law.

10. The relevant factual findings in Ollie II include,

a. “Ollie is twenty years old…. He completed the 12th grade at the Renaissance School in June, 2019 though he did not receive a diploma.”  Ollie II, FF #1.

b. “In the spring of 2020, pursuant to an IEP dated 4/16/20 – 4/15/21, Springfield placed Ollie in the College Steps program operated by [AIC].  College Steps is a privately run transition age program designed for students with disabilities and other disadvantages.  Ms. O. accepted the College Steps placement but rejected other components and features of the proposed 4/20 – 4/21 IEP. Ollie has been consistently attending the College Steps program, completing his work and making progress in all target areas….  At all times during the course of this Hearing Ollie has received the special education placement and services set out in the 4/20 – 4/21 IEP approved by the BSEA in the Ollie I Decision.”  Ollie II, FF #2.

c. “On September 17, 2020 SPS also issued a revised 4/20 – 4/21 IEP, … changing the provider of tutoring services from Springfield Public Schools to AIC College Steps ….  No substantive changes to Ollie’s placement or program were proposed….  The Parent returned the Response forms on October 22, 2020.  She indicated her assent to the placement and her rejection of portions of the revised IEP.  The rejections mirrored those then under consideration in Ollie I.  At Hearing, Ms. O. testified that she did not want to change Ollie’s placement in the College Steps program or the tutoring and speech-language services he receives pursuant to the 4/20 – 4/21 IEP.  Ms. O. stated that she is seeking additional services in occupational therapy and assistive technology….”  Ollie II, FF #25.

d. “On September 18, 2020 Ms. O. requested a Hearing at the BSEA.  The resolution meeting on that request was held on 10/1/20.”  Ollie II, FF #26.

e. “Springfield Public Schools also issued a new IEP for the time period 11/20/20 to 4/15/20 [as a result of a facilitated Team meeting/resolution meeting held on November 20, 2020].  The 11/20/20 IEP was substantively identical to the 4/20 – 4/21 IEP at issue in Ollie I and renewed in 9/20.  It covered the period of time remaining on the 4/20 – 4/21 IEP….  Ms. O. rejected the proposed IEP on 12/15/20 claiming that the IEP was ‘more than 80% written unilaterally’ and that the tutoring provided by the AIC College Steps program should follow the SPS calendar rather than the College Steps calendar.”  Ollie II, FF #31.

f. “AIC College Steps is Ollie’s placement pending appeal pursuant to the Decision in Ollie I.  Springfield Public Schools has, at all times relevant to this Decision, provided Ollie with a free appropriate public education by implementing the portions of the 4/20 – 4/21 IEP accepted by the Parent, and, ultimately approved by the BSEA.”  Ollie II, FF #32.

11. The relevant determinations made in Ollie II include,

a. “… [A]t all times relevant to this Decision, Ollie has been attending the AIC College Steps program and receiving additional related services and tutoring as set out in the 2020-2021 IEP approved by the BSEA in Ollie I.  Neither Ollie, nor Ms. O., nor SPS seeks a change in placement or in substantive educational programming.”  Ollie II, Findings and Conclusions.

b. “Ms. O.’s repeated claims of Springfield Public Schools’ harassment, intimidation and discrimination have no support in the evidentiary record.  On the contrary, email records, audio recordings and other submissions in this administrative process reveal that Ms. O. engaged in the behavior, and used the kind of language, of which she complains….  To the extent that Team and Resolution meetings were unproductive, or unsatisfactory to Ms. O., it was her own contribution to the meeting that made it so.”  Ollie, II, Findings and Conclusions.

c. “This independent finding [set forth in b, supra] is also consistent with the view and conclusions of the Hearing Officer in Ollie I as she evaluated Ms. O.’s claims concerning earlier meetings between the Parent and Springfield Public Schools.  See e.g., Ollie I at 307.”  Ollie II, Footnote 31.

d. “…. [T]hroughout the appeal process, Ms. O. demonstrated persistent and pervasive misperceptions and mischaracterizations, advanced arguments replete with faulty assumptions and resisted re-direction.  At every stage of the proceedings her recollection and recitation of “facts” has been demonstrably flawed and, therefore, unreliable.  On the other hand, at all times relevant to this Hearing, the language and behavior of SPS witnesses and representatives remained uniformly professional, cordial and conciliatory.”  Ollie II, Findings and Conclusions.

e. “Parent and Student were not denied a meaningful opportunity to participate in meetings held on August 17, 2020, September 10, 2020, October 1, 2020, or November 20, 2020.”  Ollie I, Findings and Conclusions, Part II (1-4).

f. “… [A]s no language changes to the 2020-2021 IEP were proposed, [after the August 17, 2020 Team meeting] and no service changes to Ollie would result, a revised IEP was not necessary.  Springfield Public Schools continued to provide a free, appropriate public education to Ollie pursuant to the 4/20 – 4/21 IEP….  Springfield Public Schools issued a revised 2020-2021 IEP after the 9/10/20 Team meeting….  The IEP reflected one service change requested by the Parent: that Ollie’s three weekly hours of tutoring be provided by AIC College Steps personnel rather than Springfield Public Schools personnel.  The placement remained the same.  The total hours, type and location of service delivery remained the same.  The revised IEP issued on 9/17/20 is substantively identical to the 4/20 – 4/21 IEP approved by the BSEA in Ollie I.  The Parent did not provide any evidence that the personnel change she requested resulted in a denial of a free, appropriate public education to Ollie.”  Ollie II, Findings and Conclusion Part III.

12. Hearing Officer Byrne ultimately concluded, in relevant part, that,

“The 4/20-4/21 IEP developed by SPS and revised in accordance with a Team meeting held on 9/10/20, is reasonably calculated to provide a free, appropriate, public education to [Student] and has been implemented throughout the time covered by this Decision.  The Parent did not provide the existence of any procedural violations of the IDEA that might warrant a different conclusion or support any of the relief she sought.”

13. In approximately 2021 or early 2022, Parent filed a new Hearing Request[15], Ollie III, that was assigned to Hearing Officer Berman.  On April 8, 2022, with the Hearing Officer’s permission, Parent filed an Amended Hearing Request.  Ollie III, Ruling II.  Then, on May 20, 2022, Parent filed yet another Hearing Request, which was consolidated with the pending matter on the Amended Hearing Request filed on April 8, 2022.  Ollie III, Rulings II and III.

14. The April 8, 2022, Amended Hearing Request involved the following claims: that SPS had “(1) deprived Parent of reasonable accommodations for her disability to which she was entitled under the Americans with Disabilities Act (ADA) and (2) unlawfully disclosed confidential student information.”  Ollie III, Ruling II.

15. The alleged “unlawful disclosure” involved Dr. Mary Anne Morris, SPS’s Director of Special Education, forwarding an,

“… email thread containing confidential and personally-identifying information about Parent (first and last name) and Student (first name) from her Springfield Public Schools email account to her husband and daughter.  Neither the Director’s husband nor her daughter is employed by the Springfield Public Schools or is otherwise authorized to have access to confidential student information.  The email thread was also forwarded to the BSEA hearing officer as part of an exchange regarding scheduling of a conference call in the above-entitled matter.”  Ollie III, Ruling II, FF #1[16].

16. The Hearing Request filed on May 20, 2022, involved the following claims which are relevant to this matter[17]:

a. That SPS “denied Student a free, appropriate public education (FAPE) by failing to provide him with a highly qualified licensed teacher to serve as his Biology MCAS tutor.”  Additionally, it was noted that Student’s entitlement to this “highly qualified teacher” to support him in preparing for the biology MCAS “… arises from Student’s Transition Plan, which contains a goal of obtaining a high school diploma.”; and

b. That SPS engaged in “’deliberate indifference,’ discrimination, and procedural violations that prevent Parent from receiving a fair hearing before the BSEA.”

Ollie III, Ruling III.

17. The May 20, 2022, Hearing Request contained the following requested relief by Parent, (noted as being quoted verbatim in Ollie III, Ruling III):

a. “Parent wants reimbursement of at least $5000 for the MCAS preparation for each time he must take MCAS until he receives a passing score for the diploma.  [T]he district asserted [Student] is on a diploma track and therefore must provide FAPE.

b. An Order that Springfield prevented Parent from including these issues in the current due process hearing by providing false statements to the Parent and Hearing Officer.

c. The district to provide a highly qualified teacher to correct the areas the MCAS portfolio identif[ies] must be met to accept the portfolio.

d. [An] Order District deprived [Student] FAPE by failing to provide the highly qualified teacher.”

18. On October 15, 2021, Parent and SPS participated in a BSEA mediation, and executed an “Agreement Reached through Mediation” (Mediation Agreement), that provided, in relevant part,

“The Student will work with a College Steps Mentor to provide executive functioning support as the Student works through MCAS Biology material in preparation for Biology MCAS testing.  This programming will occur during the Student’s College Steps programming hours.  The Mentor will work with the Student to complete MCAS Biology prep materials for an MCAS Biology Portfolio.  District staff will gather and collate the information for submission of the Portfolio.  If the Portfolio is not accepted by DESE, the Student will take the Biology MCAS test.  (a) If the Student’s DESE Cohort Appeal is accepted, the Student will not create or submit an MCAS Biology Portfolio or sit for the MCAS Biology test.”

Ollie III, Ruling III FF#2[18].

19. Hearing Officer Berman issued multiple published and unpublished Rulings in Ollie III.  Three of the published Rulings (Ruling I issued on February 23, 2022; Ruling II issued on June 1, 2022; and Ruling III issued on September 19, 2022) contained dispositive determinations on several of the claims raised in Ollie III.  Ollie I, Rulings I, II and III.

20. The relevant dispositive determinations made in Ollie III, Ruling I include,

a. “Parent has cited no provision in the relevant law that allows a hearing officer to impose sanctions or penalties on a school district that does not convene a resolution meeting, and I am not aware of any such provision.  On the contrary, the only potential consequence for a school district’s failure to hold a resolution meeting is that the district loses its last chance to make an offer of settlement prior to having to proceed to a due process hearing….”  Ollie III, Ruling I, Part 2.

b. “As no change in Student’s placement prior to his 22nd birthday has been proposed, this Motion must be denied.  If Parent is, in fact, seeking ‘stay put’ rights to Student’s current placement beyond his 22nd birthday, such request cannot be granted.  By operation of statute, Student’s eligibility for special education services terminates upon his reaching the age of twenty-two.  The ‘stay put’ doctrine is inapplicable at that point because Student is no longer a ‘school aged child’ within the meaning of federal and state special education statutes.  If, at an evidentiary hearing, Parent meets her burden of proving that Student was denied a FAPE during his period of eligibility, and the hearing officer determines that compensatory services would be an appropriate remedy, such services may be awarded after termination of eligibility. Pihl v. Massachusetts Dept. of Education, 9 F.3d 154 (1st Cir., 1993).  It is well settled, however, that extension of the period of eligibility beyond the statutory age limit is not an available form of relief.  Dracut Public Schools v. BSEA, et al., 737 F.Supp. 35 (D. Mass. 2010).”  Ollie III, Ruling I Part 4.

21. The relevant dispositive determinations made in Ollie III, Ruling II include,

a. “The District correctly argues that the BSEA lacks jurisdiction to adjudicate claims under the ADA… Further, the BSEA cannot hear Parent’s claim of discrimination in violation of §504 of the Rehabilitation Act because the BSEA’s jurisdiction over §504 matters is limited to claims that a student with a disability has been denied a FAPE as defined by that provision.”  Ollie III, Ruling II.

b. “There is no dispute that that the Director, who is an employee of the District, disclosed personally identifying information about Parent (first and last name) and Student (first name) to persons who were not authorized to receive it.  However, in my [unpublished] Ruling of March 24, 2022, I determined that none of the multiple federal and state statutes and regulations governing confidentiality of student information, including the IDEA, grant jurisdiction or authority to the BSEA to enforce their provisions, or to impose any type of sanction or penalty against an individual or agency that violates those provisions.  Parent argues that she brings her claim under the aegis of the IDEA, rather than FERPA, such that it was not addressed in the prior Ruling.  The prior Ruling clearly states, however, that the IDEA at 20 USC §§1412(8) and 1417(c), and the corresponding regulations at 34 CFR §§300.610-626, explicitly incorporate the FERPA confidentiality provisions.  Further, the federal regulations at 34 CFR §326.00 provide for enforcement by the U.S. Department of Education, but not by an administrative hearing officer in a due process proceeding.  The only avenue for a hearing officer to consider evidence regarding a breach of confidentiality by a school district employee would be if the parent alleged that such disclosure deprived the student of a FAPE.  Parent has made no such allegation here, and such cannot be inferred from the Parent’s Amended Hearing Request.  Based on the foregoing, Parent’s claim regarding breach of confidentiality should be dismissed for lack of jurisdiction and failure to state a claim on which relief can be granted.  That said, the District is strongly advised to ensure that employees comply with all provisions governing the privacy and confidentiality of student information, including information coming before the BSEA.”  Ollie III, Ruling II.

c. “For all claims arising under the ADA or §504 of the Rehabilitation Act, the District’s Motion for Summary Judgment is GRANTED because the BSEA lacks authority to grant the requested relief under those statutes.”  Ollie III, Ruling II, Conclusions and Order, Part (a).

d. “For all claims relative to the Director’s breach of confidentiality as set forth in the Amended Hearing Request, the District’s Motion is GRANTED because the BSEA lacks authority to grant relief for said breach.”  Ollie III, Ruling II, Conclusions and Order, Part (c).

22. The relevant dispositive determinations made in Ollie III, Ruling III include,

a. “The mediation agreement issued in October 2021 addressed Springfield’s obligations to assist and support Student’s pursuit of a portfolio appeal.  It appears from Parent’s submissions that she either is dissatisfied with the terms of the agreement itself or believes that Springfield has not fully complied with the agreement.  The BSEA does not have jurisdiction or authority to either modify or enforce a mediation agreement.  Rather, Parent may seek relief in a court of competent jurisdiction and/or may seek to revisit the agreement with the BSEA mediator.  Summary judgment is GRANTED in favor of the School on all issues covered by the mediation agreement of October 2021….  Thus, neither the terms of the Mediation Agreement nor the parties’ compliance or non-compliance with that Agreement can or will be addressed in a hearing in the consolidated matter, as this issue was disposed of via summary judgment in favor of the School and will not be revisited.”

b. “… [The claim] that Student was entitled to instruction by a highly qualified teacher to prepare for the Biology MCAS separately from, and/or in addition to, the assistance of the College Steps Mentor and of the District staff responsible for collating biology course materials referred to in the Mediation Agreement…. cannot be resolved through a Motion to Dismiss, in which my inquiry is restricted to the adequacy of the allegations in the hearing request.  Rather, to address Parent’s claim for an entitlement to a highly qualified teacher, I must evaluate evidence such as, for example, the IEP covering April 2021-April 2022 and correspondence or agreements, if any, that mention biology instruction and/or tutoring in addition to the supports covered by the Mediation Agreement.  As such, this claim survives the Motion to Dismiss insofar as Parent alleges Student’s entitlement to a highly qualified teacher for Biology MCAS preparation.”

c. “If Parent establishes, by a preponderance of the evidence, that Student was entitled to instruction from a highly qualified teacher during the period or periods in question, and that Springfield failed to provide Student with this service, then I will determine the appropriate remedy, which may or may not incorporate some or all of Parent’s proposed relief.  The Motion to Dismiss regarding this claim should be denied as premature.”

d. “For all claims related to the adequacy, interpretation or enforcement of the Mediation Agreement executed in October 2021, the Motion to Dismiss is GRANTED WITH PREJUDICE.”  Ollie III, Ruling III, Conclusion and Order, Part (a).

e. “To the extent that Parent alleges that Student had a right to instruction from a highly qualified teacher to prepare him for the Biology MCAS during the period from the execution of the Mediation Agreement in October 2021 until expiration of the April 2021-April 2022 IEP, separate and apart from the services and supports outlined in the above-referenced Mediation Agreement, the Motion to Dismiss is DENIED.”  Ollie III, Ruling III, Conclusion and Order, Part (b).

f. “For the claim seeking future reimbursement of at least $5000 for MCAS preparation services, each time Student must take the Biology MCAS examination, the Motion to Dismiss is DENIED.”  Ollie III, Ruling III, Conclusion and Order, Part (d).

23. On or before April 30, 2022, Student turned 22 years old, thereby ending his eligibility for special education and related services.

24. On May 12, 2022, Parent, as the advocate for another parent in the Kantor Nir Matter, filed a Motion Relative to Breach of Confidentiality by District’s Counsel alleging that paragraph 7 of an Opposition pleading filed by SPS in the Kantor Nir Matter on that date, “… references a quote from a ruling by Hearing Officer Berman’s (sic) in another pending Springfield matter, and indicates that [the parent in the matter pending before Hearing Officer Kantor Nir]’s educational advocate (the Advocate) in the instant case is a party to that case”.  This Motion also alleged that SPS’s “… counsel breached the confidentiality of the Advocate’s child” and requested that the Opposition document in question be “stricken from the record”.  Kantor Nir Matter Ruling, Procedural History and Relevant Facts 4 and 5.

25. Although Hearing Officer Kantor Nir ultimately denied the Motion filed by Parent acting as the Advocate in the matter before her, she noted specifically that “it is indisputable that the District’s reference to Advocate … disclosed personally identifiable information relative to the Advocate and her child.”  Kantor Nir Matter Ruling.

LEGAL STANDARDS[19]

1. Legal Standard for a Motion to Dismiss.

Pursuant to Rule XVI(A) and (B) of the Hearing Rules for Special Education Appeals and 801 CMR 1.01(7)(g)(3), a hearing officer may allow a motion to dismiss 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[20].  To survive a motion to dismiss, there must exist “factual ‘allegations plausibly suggesting (not merely consistent with)’ an entitlement to relief…”[21].  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”[22].  In this BSEA due process proceeding, therefore, the Motions to Dismiss are to be decided based on the facts alleged in the Amended Hearing Request.  (In this regard I take into consideration the prior dispositive factual findings and determinations of which I took administrative notice, given that those proceedings are referenced throughout the Amended Hearing Request, and thus incorporated therein[23].)

In analyzing motions to dismiss, hearing officers “begin by identifying and disregarding statements in the [Hearing Request] that merely offer ‘legal conclusion[s] couched as … fact[ ]’ or ‘[t]hreadbare recitals of the elements of a cause of action.’”[24].  Additionally, “non-conclusory factual allegations in the [Hearing Request] must then be treated as true, even if seemingly incredible[25].  The party opposing the motion, therefore, must show “factual allegations … 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) ….”[26].

Motions to Dismiss should be approached with caution, regardless of the representation status of a party[27].  Consistent with the Federal Rules of Civil Procedure, 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[28].  However, “[w]hile …. detailed factual allegations” are not necessary, “… a [Parent and Student’s] obligation to provide the ‘grounds’ of [their] ‘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”[29].

2. Jurisdiction of BSEA.

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”[30].  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”.

As Hearing Officer Berman advised in Ollie III, Ruling II, “[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”[31].

a. Student Record Violation Claims

Student records are protected by both federal and state laws and regulations[32] and FERPA’s confidentiality provisions are specifically incorporated into the IDEA[33].  However, this does not mean that every student record violation claim is within the jurisdiction of the BSEA.  Both Hearing Officers Berman, in Ollie III, Ruling II, and Kantor Nir, in the Kantor Nir Matter Ruling, discussed extensively the types of student record violation claims within the jurisdiction of the BSEA.  They both concluded that “the only avenue for a hearing officer to consider evidence regarding a breach of confidentiality by a school district employee would be if the parent alleged that such disclosure deprived the student of a FAPE”[34].  They also both noted, however, the availability of other forums to address student record violations not within the BSEA’s jurisdiction[35].

b. Age of Eligibility Claims

As noted above in Ollie III, Ruling I, Hearing Officer Berman analyzed the law pertaining to the end of IDEA eligibility upon a student turning 22 years old, explaining in footnote 4 that,

“[t]he IDEA at 20 USC §1412(a)(1)(A) and (B) requires states, as a condition of receiving federal funding, to provide FAPE to children with disabilities from the ages of three through 21, inclusive, unless state law does not require such education for children between the ages of three and five or 18 and 21. The Massachusetts special education statute, MGL c. 71B, extends eligibility to children under the age of 22 when it defines a ‘school aged child’ as ‘any person of ages three through twenty-one who has not attained a high school diploma or its equivalent’.  MGL c. 71B, §1.  Thus, an individual who has reached the age of 22 is no longer a ‘school aged child’ within the meaning of the statute”[36].

3. Statute of Limitations Applicable to BSEA Hearings.

Due process proceedings brought under the IDEA must be commenced within two years of the date that a party knew or should have known of the actions forming the basis of its hearing request[37].  The only exceptions to this two-year limitation period are if a parent is prevented from filing a hearing request because of “(i) specific misrepresentations by the [district] that it had resolved the problem forming the basis of the complaint; or (ii) the [district]’s withholding of information from the parent that was required … to be provided …”[38].

4. Issue Preclusion and Res Judicata

The legal principles of estoppel and res judicata preclude the re-litigation of the same claims filed by the same parties in a different or new proceeding and apply to BSEA hearing requests so filed subsequent to a prior hearing request(s)[39].  These doctrines “prevent plaintiffs from splitting their claims by providing a strong incentive for them to plead all factually related allegations and attendant legal theories for recovery the first time they bring suit”[40]. They further “relieve parties of the cost and vexation of multiple lawsuits, conserve judicial resources, and, by preventing inconsistent decisions, encourage reliance on adjudication”[41].

The doctrine of res judicata precludes a party from relitigating issues that were or could have been raised in an action for which a final judgment on the merits has issued[42].  The 3 elements of this doctrine are (1) a final judgment on the merits in an earlier suit, (2) “sufficient identicality” between the causes of action asserted in the earlier and later suits, and (3) “sufficient identicality” between the parties in the two suits[43].  Similarly, the doctrine of issue preclusion, also known as “collateral estoppel”, “‘means simply that when a[n] issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit’”[44].

Massachusetts applies a “transactional approach” to determining the identicality element of claims brought in a subsequent proceeding[45].  Claims that derive from a “common nucleus of operative facts” are, therefore, unable to be brought in a subsequently filed Hearing Request, if they could have been brought in the earlier action[46].  However, under the IDEA new evidence can be introduced in civil action appeals of due process hearing decisions.  Specifically, under 20 USC 1415 (i)(2)(c), “[i]n any action brought under this paragraph, the court—(i) shall receive the records of the administrative proceedings; (ii) shall hear additional evidence at the request of a party; and (iii) basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate” (emphasis added)[47].  As such, only new claims not dispositively addressed previously by the BSEA or being currently adjudicated in federal or state courts (where additional evidence may be submitted), can be litigated in subsequently filed Hearing Requests between the same or “sufficiently identical” parties[48].

Guided by this legal authority, I turn to the Motions.

APPLICATION OF LEGAL STANDARDS

After reviewing the Amended Hearing Request in the light most favorable to Parent and Student, as I am required to do[49], I find that most of the claims they bring are either outside the jurisdiction of the BSEA, precluded on res judicata or issue preclusion grounds, or beyond the statute of limitations applicable to IDEA due process hearings. However, I also conclude that certain parts of Claims 18 and 22 do not warrant dismissal at this stage of the proceedings, and survive against SPS only, limited in scope as set forth below.  My reasoning follows.

I. Non-specific General Claims

Claims 1 and 2 consist entirely of generalized legal conclusory statements.  The type of specificity that is necessary to meet the “notice pleadings” threshold for Hearing Request claims is not provided[50].  Additionally, no specific date or timeframe is provided particular to these claims[51].  While these claims may have only been intended to be presented as introductory language, to the extent they are submitted as independent claims, they are dismissed.

Claim 16 is also insufficient involving “labels and conclusions” rather than the type of specificity, date, or contextual information needed to survive motions to dismiss[52].  The entire claim consists of the statement “The Defendant’s lawyers for Springfield Public Schools made ex parte communication (sic) with Hearing Officer Berman.”  No other context or information is given.  The sentence before this statement relates to the claim of alleged interference with Parent’s livelihood as an advocate, and the sentence following the statement relates to the claim about being denied the alleged “due process right” to a “mandatory resolution meeting”.

Even assuming Claim 16 to be true, however, the BSEA is not the appropriate forum to adjudicate it as no allegation is made that such communications impacted Student’s right to receive a FAPE, nor can this be inferred.  Moreover, although no date is identified, if the ex parte communications occurred after Student turned 22, they cannot have impacted his right to a FAPE, as his right to receive a FAPE had ceased by this time[53].  Further, as the due process proceeding before Hearing Officer Berman (Ollie III) is currently under appeal, if Parent and Student believe the ex parte communications negatively impacted the Ollie III proceedings, they can raise this in those appellate proceedings.  Thus, Claim 16 is also dismissed.

Finally, I note that Parent and Student were advised in my April Sufficiency Challenge Ruling that they needed to provide greater specificity to their claims, particularly with regard to dates and timeframes.  Thus, Parent and Student have already had an opportunity to clarify their claims in this matter.  I do not find any reason to provide a third opportunity to them at this time, particularly given the extensive litigation history between the Parties and the fact that multiple appellate proceedings remain pending wherein most, if not all of the claims in the Amended Hearing Request about impropriety on the part of SPS or its representatives in those underlying due process proceedings, can still be raised.  Thus, as to any claims that are nothing more than “legal conclusions couched as fact” or “labels and conclusions”, including but not limited to claims 1, 2 and 16 set forth above, the Motions to Dismiss are ALLOWED with prejudice.

II. Modified Competency Determination Process Claims

The majority of Parent’s and Student’s claims, including Claims 3, 4, 5, 7, 8, and 21, center around contentions that Student was eligible for and should have been given a modified competency determination waiver from, the MCAS graduation requirements, but due to alleged submission of “improper sims data” or “enrollment” information to DESE, such a waiver was not issued.  Additionally, Parent and Student argue that DESE did not properly supervise SPS or investigate Parent and Student’s complaints about these erroneous submissions.  As Student had met all other graduation requirements for a diploma except passing the Biology MCAS prior to turning 22, Parent and Student contend that the failure to get this waiver resulted in Student not receiving a high school diploma to which he was otherwise entitled.  Moreover, they claim that since receiving a diploma is deemed a “change of placement” under the IDEA, the errors that led to Student not receiving this competency determination waiver, and, in turn, his diploma amount to a denial of a FAPE to Student and prohibited Parent and Student from meaningfully participating in Student’s educational decision-making.

DESE advises however, that the modified competency determination process (Modified CD) was approved by the Board of Elementary and Secondary Education (BESE) during the COVID-19 pandemic so as to provide all high school students in the classes of 2020, 2021 and 2022 an “alternate means of demonstrating competency” in the MCAS tested areas which could not be fully administered these years.  Thus, according to the DESE Defendant “the modification of the competency determination was not an accommodation or service intended to support only students with disabilities”.

I agree that the state competency requirements (which are demonstrated through passage of the MCAS in certain subject areas) are a general education requirement applicable to all students.  The only special education specific aspect of the competency determination process pertaining to students who are eligible for IEPs or 504 Plans involves, in certain circumstances, the ability for such students to demonstrate competency in an alternate way by participating in the MCAS-Alt.  However, such participation makes these students ineligible for a high school diploma[54].

The BSEA has jurisdiction to address only those claims involving “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”[55].  However, this does not mean that every alleged wrong imposed on an IDEA or 504-eligible student is actionable at the BSEA[56].  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.  Such is the case for the claims pertaining to the Modified CD[57].  Thus, all claims pertaining to this issue, including but not limited to Claims 3, 4, 5, 7, 8 and 21 must be dismissed as beyond the jurisdiction of the BSEA[58].  The Motions to Dismiss as to these claims are, therefore, ALLOWED with prejudice.

III. Claims Precluded by Res Judicata and Issue Preclusion.

Claims numbered 6, 10, 11, 14 and 17, set forth above, all relate to issues or allegations of impropriety in prior due process proceedings, or claims that have been raised and dispositively adjudicated in these prior BSEA matters.  All three res judicata elements exist for these claims[59].  First, a full and final judgement on the merits was made as to all of the allegations in these claims either via the decisions in Ollie I and Ollie II, the dispositive rulings in Ollie III (particularly Ollie III, Rulings I, II, and III) or in the Kantor Nir Matter Ruling as noted above.

Second, sufficient “identicality” exists between the current claims and those made in the prior matters.  While Claims 10, 11 and 17 repeat allegations raised in prior matters that were previously dispositively adjudicated, Claims 6 and 14 relate to alleged impropriety of “lies to judges”, “perjury”, “false statements” or the like, on the part of SPS or its representatives or staff that occurred during these prior proceedings.

Claim 10 was specifically addressed in Ollie III, Ruling II.  Despite concluding “there is no dispute that the Director, who is an employee of the District, disclosed personally identifying information about Parent (first and last name) and Student (first name) to persons who were not authorized to receive it”, Hearing Officer Berman dismissed that claim in light of the BSEA’s lack of jurisdiction[60].

Claim 11 was also specifically addressed in the Kantor Nir Matter.  There, Hearing Officer Kantor Nir affirmatively determined that it was “indisputable” that there was a “disclos[ure of] personally identifiable information relative to the Advocate [Parent, in this case] and her child.”  However, she also concluded that she could not provide any relief over this disclosure as there was no allegation of it depriving the student in that matter with a FAPE[61].  Unfortunately, as the disclosure occurred on May 12, 2022, after Student had turned 22, thereby ending his eligibility under IDEA, and his right to a FAPE, it is not possible for this disclosure to have impacted Student’s right to a FAPE, either.  Moreover, since any rights accorded to Parents under the IDEA are based on the eligibility of their child, any IDEA rights Parent may otherwise have had had about disclosure of confidential information had also ended[62].

Claim 17, alleging that Parent and Student were denied their “due process right” to a “mandatory resolution session”, although not specifying when this violation occurred[63], was specifically addressed in Ollie III, Ruling I[64].  There, Hearing Officer Berman denied any relief for the un-held resolution session[65].

Claims 6 and 14 pertain to allegations of “lies to judges” “perjury” or “false statements” by unnamed SPS staff and Attorneys Phelps and St. Florian made in the prior due process proceedings, that Parent claims to have only recently discovered.  Although Parent alleges these improper statements resulted in a denial of a FAPE to Student, this does not save these claims from dismissal, as all the alleged misstatements are noted to have been made in either Ollie I, Ollie II or Ollie III.  In other words, as the misstatements derive from a “common nucleus of operative facts” raised in these prior proceedings, they cannot be brought in this subsequently filed matter[66].  Rather, Parent’s and Student’s only, proper, recourse is to pursue these claims in the pending federal appeals of these prior matters[67].

Finally, there is sufficient identicality of the parties among the prior due process proceedings and this matter[68].  Claims 6, 10, 11 and 14 appear to be specific to either named or unnamed SPS staff or Attorneys Phelps and St. Florian, its representatives[69].  Claim 17 pertains to alleged denials of a right to a resolution session which, although not specified to any party, can only logically be deemed directed at SPS, the party involved in all the prior due process proceedings.

Therefore, applying the legal principles of res judicata and issue preclusion to this matter, all claims that were previously dispositively adjudicated by other BSEA Hearing Officers (and which, for the most part, are now under appeal in the federal or state courts), are precluded here and must be dismissed.  Thus, as to all claims previously adjudicated by Hearing Officers Reichbach, Byrne, Berman or Kantor Nir, that are raised again in the Amended Hearing Request, including Claims 6, 10, 11, 14 and 17, the Motions to Dismiss are ALLOWED with prejudice.

IV. Claims Beyond the Statute of Limitations Period and Student’s IDEA Eligibility Period and Student Record Violation Claims

Claims 12, 15, 19 and 23 pertain to issues outside the statute of limitations, allegations that occurred after Student’s eligibility under IDEA had ended or involve alleged violations of student record laws.  As stated, above, IDEA claims must generally be filed within two-years of the date an (amended) Hearing Request is filed, absent the existence of one of the two statutory exceptions[70].  Further, as also discussed above, the right of students to be provided prospectively with a FAPE, and the corresponding parental rights that exist under the IDEA, cease when a student turns 22 years old[71].  Finally, as previously noted, the BSEA’s jurisdiction over claims brought under the student record laws, can only be considered by a Hearing Officer if a claim about a FAPE violation is also alleged[72].

The Amended Hearing Request, filed on May 2, 2023, states that all claims in this matter “occurred between June 2019 … and May, 2022[73]” and advises that Student is 23 years old.  While Student’s specific birthdate remains unknown, he must have turned 22 years old on or before April 30, 2022, as the Amended Hearing Request is dated May 1, 2022.  Thus, only claims that occurred between May 2, 2021, and the day before Student turned 22 (i.e., on or before April 29, 2022[74]), are viable in this matter, absent the applicability of one of the exceptions to the 2-year statute of limitations[75].  Moreover, claims alleging violations of the student record laws can only survive if they also allege that such violations resulted in a denial of a FAPE to Student within the limitation timeframe.

Claim 12 alleges that Attorney Phelps attended a meeting in May 2019 without notice to Parent or Student along with another SPS staff member.  As Parent clearly was aware of Attorney Phelps attendance at this meeting, no exception to the statutory limitation period applies.  Thus, as the meeting occurred before May 2, 2021, this claim must be dismissed.  Similarly, Claim 15 involves alleged improprieties by an SPS staff member during a March 2023 meeting that allegedly “interfere[ed] with [Parent’s] livelihood”.  As it is indisputable that Student’s IDEA eligibility, and Parent’s rights under the IDEA had terminated by March 2023, this claim must also be dismissed.

Claims 19 and 23 allege violations of the student record laws.  Claim 19 challenges the creation of an alleged “email account” on an unknown date that is “violating student record rights”, while Claim 23 alleges Parent and Student were denied access to certain “educational student record[s] including the sims” in 2021.  Even viewing these claims in the light most favorable to Parent and Student and taking as true that the email account was created during the statutory timeframe and that the alleged record access denial occurred after May 2, 2021 (or if prior to May 2, 2021, that the exception claimed by Parent applies), both claims must be denied as they are beyond the BSEA’s jurisdiction.  Neither claim alleges that the email account creation or the denied record access also resulted in a denial of a FAPE to Student, nor can this be inferred.  No further information related to the email account is included in the Amended Hearing Request, and the “sims” information, as discussed above, pertains to general education matters not protected by the IDEA.

Thus, all claims in the Amended Hearing Request that occurred outside the timeframe of May 2, 2021, to April 29, 2022, for which the second exception of the statutory limitation period does not apply, or which pertain to violations of the student record laws, for which a FAPE violation is also not alleged, including but not limited to Claims 12, 15, 19 and 23, must be dismissed.  As to those claims, therefore, the Motions to Dismiss are ALLOWED with prejudice.

V. Claims 9, 13 and 20.

Claim 9 alleges that SPS or its representatives “withheld evidence in prior BSEA hearings” relating to “multiple unenrollments and change of placements they reported to DESE SIMS in Ollie II”.  This action prohibited Parent from “exercis[ing her] rights in [that] hearing”.  Further, Parent claims the discovery SPS produced in Ollie II was overly redacted.  For the reasons previously stated, dismissal of this Claim is necessary pursuant to the doctrines of res judicata and issue preclusion, and as this claim is outside the jurisdiction of the BSEA as it relates to the Modified CD issues.

Claim 13 must similarly be dismissed on multiple grounds.  Claim 13 alleges that between August 2019 and May, 2022, several IEP Team meetings and other meetings occurred regarding Student wherein Attorney Phelps and Attorney St. Florian inappropriately forced Parent to disclose her disabilities when she “attempted (sic) access reasonable accommodations”, “which is IDEA retaliation against [Parent] for participating in protected activities”.  Such allegations were known to Parent at the time they occurred, and thus, no exception to the statutory limitation period exists.  Thus, all claims for meetings that took place prior to May 2, 2021, are barred on statute of limitation grounds.  Moreover, as to timely meetings, dismissal is also warranted.  Claim 13 was directly addressed in my April Sufficiency Challenge Ruling wherein, as discussed above, I determined that the original Hearing Request needed to provide more specificity, and I ordered with particularity that additional information be provided for certain claims, including what I referred to as Paragraph 4 of the “6 numbered paragraphs under the ‘confidentiality’ part of the Hearing Request”, if they were to remain in the Amended Hearing Request[76].  April Sufficiency Challenge Ruling Order 4(d).

Even viewing Claim 13 in the light most favorable to Parent (i.e. by assuming that, despite not providing a date for each specific meeting involved with this claim as Ordered, it is made for all meetings related to Student between May 2, 2021 and April 29, 2022 that were attended by one or both of the identified Attorneys and Parent), I still find it to provide only “‘legal conclusion[s] couched as … fact[ ]’ or ‘[t]hreadbare recitals of the elements of a cause of action.’”[77].  As previously discussed for the other non-specific general claims dismissed in this matter, no reason exists to provide Parent and Student a third opportunity to provide more clarification and specificity to Claim 13, particularly as it was specifically identified as one of the claims in the original Hearing Request that needed to be supplemented[78].

Finally, Claim 20 alleges that SPS “lied” to Hearing Officer Berman in Ollie III about who put Student’s “portfolio” together.  Further, it alleges improprieties with the compilation of Student’s “portfolio” known to Dr. Morris that were not corrected prior to it being submitted, resulting in a “denial of FAPE and violations of [Students] civil rights”.

The allegations pertaining to alleged “lies” to Hearing Officer Berman are precluded by res judicata and issue preclusion and cannot proceed for the same reasons Claims 6 and 14 are dismissed, above[79].  Additionally, it is very likely that Student was already 22 by the time they were allegedly made to Hearing Officer Berman, given the dates associated with Ollie III.  To the extent they occurred prior to Student turning 22, that should have been specified.  As it was not, and as Parent and Student have already had the opportunity to clarify the dates associated with each of their claims, no reason exists to provide them with a third chance to do so.

The allegations pertaining to the erroneous compilation and submission of an inaccurate “portfolio” must also be dismissed under the principles of res judicata and issue preclusion.  Hearing Officer Berman already dispositively determined in Ollie III, Ruling III that any issues surrounding SPS’s “obligations to assist and support Student’s pursuit of a portfolio appeal” were addressed in the October 2021 mediation agreement between Parent and SPS.  As Hearing Officer Berman concluded, although Parent may be,

“dissatisfied with the terms of the agreement itself or believes that Springfield has not fully complied with the agreement[, t]he BSEA does not have jurisdiction or authority to either modify or enforce a mediation agreement….  Summary judgment is GRANTED in favor of [SPS] on all issues covered by the mediation agreement of October 2021”.

Thus, the Motions to Dismiss are ALLOWED with prejudice as to Claims 9, 13 and 20.

VI. Claims 18 and 22.

Claim 18 alleges 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 BSEA has consistently held that claims under the ADA and Title VI are outside its jurisdiction[80], and I see no reason to stray from that analysis in this instance.  However, Student’s right to receive reasonable accommodations and to be protected from discrimination under Section 504 based upon his educational disabilities are indisputably within the BSEA’s jurisdiction.  As no exception to the limitations period applies to such a claim, however, Claim 18 is 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 April 29, 2022.  When so limited in scope, I find that at this stage of the proceedings, sufficient allegations have been raised to meet the “notice pleadings” threshold pertaining to issues that are squarely within the jurisdiction of the BSEA.  As such, this limited Claim 18 survives and the Motions to Dismiss are DENIED for it, as so limited.

Similarly, Claim 22 alleges that SPS failed to implement Student’s IEP with respect to providing him tutoring for the biology MCAS and “providing all opportunities for a diploma”.  The School and Attorney Defendants do not dispute the authority of the BSEA over this claim.  However, they argue for its dismissal for failure to comply with my April Sufficiency Challenge Ruling in ways unrelated to the substance of Claim 22, itself.  At this stage of the proceedings, when faced with a claim that otherwise would survive dismissal, I decline to dismiss the Claim for failures to comply with other aspects of my April Sufficiency Challenge Ruling, given my obligation to view all claims in the light most favorable to Parent and Student.  However, just as I did with Claim 18, I limit the scope of this claim to the timeframe between May 2, 2021 and April 29, 2022, as none of the exceptions to the statute of limitations applies.

I further limit the breadth of the timely portions of Claim 22 in light of the applicability of the doctrines of res judicata and issue preclusion to its contents.  The issue of implementation of Student’s IEP with regard to tutoring for the biology MCAS was brought in Ollie III, and dispositively adjudicated, in part, by Hearing Officer Berman in Ollie III, Ruling III.  In Ollie III Parent challenged SPS’s failure to provide Student a tutor for the biology MCAS, claiming that Student’s entitlement to a “highly qualified teacher” to prepare for the Biology MCAS arose “from Student’s Transition Plan, which contains a goal of obtaining a high school diploma”.  SPS sought to dismiss “all claims related to supporting Student’s MCAS preparation” in Ollie III, Ruling III, alleging that they were precluded by the October 2021 mediation agreement.  However, Hearing Officer Berman did not dismiss all of this claim, as noted above.  She left open the claim as to whether Student was entitled to, and if so, whether he was provided with, “a highly qualified teacher to prepare for the Biology MCAS separately from, and/or in addition to, the assistance of the College Steps Mentor and of the District staff responsible for collating biology course materials referred to in the Mediation Agreement.”

While Claim 22 is worded more broadly than what Hearing Officer Berman left open in Ollie III, Ruling III, I find that it covers the limited allegation that survived Ollie III, particularly when I view Claim 22 in the light most favorable to Parent and Student.  Thus, the issue of whether or not Student was entitled to and provided with a highly qualified teacher for Biology MCAS preparation between May 2, 2021 and April 29, 2022 survives, and the Motions to Dismiss as to Claim 22 are DENIED as so limited.

ORDER

The Motions to Dismiss are ALLOWED in substantial part, and DENIED, in limited part.

Only the following issues remain for hearing in this matter:

a. Whether Student was discriminated against or not provided with reasonable accommodations he was entitled to between May 2, 2021, and the day before he turned 22 years old (on or before April 29, 2022) in violation of Section 504 of the Rehabilitation Act of 1973; and

b. Whether Student was entitled to and provided with a highly qualified teacher for Biology MCAS preparation between May 2, 2021, and the day before he turned 22 years old (on or before April 29, 2022).

All other claims are hereby DISMISSED with prejudice.  Moreover, all parties other than the Springfield Public Schools are also DISMISSED with prejudice from these proceedings.  Accordingly, this matter will proceed with Parent and Student and SPS as the only Parties, consistent with my May 31, 2023, Ruling.

By the Hearing Officer,

 

________________________________________________
Marguerite M. Mitchell

Date: June 12, 2023

 

 

[1]   This Motion is dated May 12, 2023, but as it was filed after the close of the business day on May 12, 2023, it is deemed filed on May 15, 2023, the next business day.

[2]   This was an Amended Hearing Request as explained further supra.  It 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 procedural history of this matter relating to the initial Hearing Request is set forth in the April Sufficiency Challenge Ruling and is not repeated here unless relevant to the underlying Motions.  Additionally, on May 16, 2023, I issued a Ruling on Challenge to Sufficiency of Amended Hearing Request (May Sufficiency Challenge Ruling) that provided further procedural history also not repeated here unless relevant to the underlying Motions.

[4]   Given Parent’s educational advocate experience and professional background, and her representation of Student as a professional advocate in this matter, I do not accord leniency based on pro se status to either of them.

[5]   As Parent and Student were ordered to specify and clarify certain claims in my April Sufficiency Challenge Ruling, all of the information in the Amended Hearing Request reflects this opportunity for Parent and Student to provide such clarity and specificity to every claim.  To the extent clarity or specificity of a claim is still lacking, I treat it accordingly.

[6]   The claims set forth below consist of a summary of the claims I could discern from the information contained in the Amended Hearing Request.  Further, while the claims are mostly ordered as presented in the Amended Hearing Request, where repetitive claims were made, they were combined.

[7]   This renewed Motion to Dismiss is dated May 12, 2023, but as it was filed after the close of the business day on May 12, 2023, it is deemed filed on May 15, 2023, the next business day.

[8]   At the outset it advised that DESE has never been a party to any of the prior BSEA proceedings involving Student and thus cannot comment on any claims or allegations in the Amended Hearing Request related to the prior matters.

[9]   The Decision was issued on November 10, 2020, and can be found at 26 MSER 275.

[10]   The Decision was issued on March 18, 2021, and can be found at 27 MSER 158.

[11]   A Ruling on Motions for Eight Items of Relief, was issued on February 23, 2022 (Ollie III Ruling I) and can be found at 28 MSER 29; a Ruling on Springfield Public School’s Motion to Dismiss/Motion for Summary Judgement Relative to Parent’s Amended Hearing Request was issued on June 1, 2022 (Ollie III Ruling II) and can be found at 28 MSER 111; and a Ruling on Motion to Dismiss of Springfield Public Schools was issued on September 19, 2022 (Ollie III Ruling III) and can be found at 28 MSER 247.

[12]   Although this matter does not pertain to Student, the Amended Hearing Request refers to Hearing Officer Kantor Nir several times and includes the case citation thereof.  This matter resulted in eight (8) published Rulings and one Decision (issued on January 17, 2023, but for which no appeal has been filed), including but not limited to a Ruling on Parent’s Motion Relative to Breach of Confidentiality by District’s Counsel (June 3, 2022) that can be found at 28 MSER 139, (Kantor Nir Matter Ruling).

[13]   Ollie I addressed additional issues not set forth herein, as they are not pertinent to the claims in this matter.

[14]   As with Ollie I, Ollie II addressed issues not set forth herein, as they are not pertinent to the claims in this matter.

[15]   The published Rulings from Ollie III do not identify the date this Hearing Request was originally filed.

[16]   Hearing Officer Berman made a total of 7 factual findings in the portion of Ollie III, Ruling II relating to the Motion to Dismiss filed by SPS that she advised were “… derived from the Parent’s Amended Hearing Request and are presumed to be true for purposes of this Ruling, only”.  She also made a total of 5 factual findings in the portion of Ollie III, Ruling II relating to SPS’s Motion for Summary Judgment, that she advised were “… not in dispute and are derived from the Amended Hearing Request, the Motion to Dismiss or for Summary Judgement, with a supporting Memorandum, and Parent’s Opposition, to [this] Motion.  These facts are considered in the light most favorable to Parent as the non-moving party.”.  The first factual finding provided in both portions of Ollie III, Ruling II provided this quoted information explaining the alleged confidential disclosure, and although it was subject to revision in the future, I take administrative notice of it solely so as to provide clarification and context about the alleged disclosure of confidential information by Dr. Morris that Parent raises as a claim in this matter.  However, I do not consider the remaining factual findings as they are not pertinent to the claims in this matter.

[17]   As with Ollie I and Ollie II, claims were made in the May 20, 2022, Hearing Request that are not set forth herein, as they are not pertinent to the claims in this matter.

[18]   Hearing Officer Berman made a total of 5 factual findings in Ollie III, Ruling III, relating to a Motion to Dismiss filed by SPS that she advised were “… derived from Parent’s Hearing Request (as clarified by the Mediation Agreement of October 15, 2021, attached to Springfield’s Further Response as Attachment B), are presumed to be true for purposes of this Ruling, only, and are construed in the light most favorable to Parent.”  I take administrative notice of the second factual finding, only, and consider it for this Ruling, as it consists of a quote from the Mediation Agreement, a document that would otherwise speak for itself evidentiarily.

[19]   Where extensive legal analysis has already been provided in any of the Decisions or Rulings I note the same accordingly and quote directly from these dispositive documents, given the res judicata and issue preclusion prohibitions that pertain to much of this matter.

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

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

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

[23]   See Nollet v. Justices of the Trial Court of Mass., 83 F.Supp.2d 204, 208 (D.Mass. 2000), aff’d, 248 F.3d 1127 (1st Cir. 2000) holding that “[w]hen ruling on a 12(b)(6) motion to dismiss for failure to state a claim, the court may consider only the facts alleged in the pleadings, documents attached as exhibits or incorporated by reference in the complaint, and matters of which judicial notice may be taken.”; In Re: Ludlow Public Schools, BSEA No. 1603808, 21 MSER 276 (Ruling, Figueroa, 2015).

[24]   Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 12 (1st Cir. 2011), citing Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009) (quoting Bell Atl. Corp., 550 U.S. at 555).

[25]   Id., citing Iqbal, 129 S.Ct. at 1951.

[26]   Iannocchino 451 Mass. at 636 quoting Bell Atl. Corp., 550 U.S. at 555 (internal citations omitted); see Ocasio-Hernandez, 640 F.3d at 12.

[27]   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.  However, even in such cases, “[w]hile ‘a trial judge is to employ less stringent standards in assessing pro se pleadings … than would be used to judge the final product of lawyers,’ this leniency does not permit the district court to act as counsel for a party or to rewrite deficient pleadings” Lampkin-Asam v. Volusia Cnty. Sch. Bd., 261 F. App’x 274, 276–77 (11th Cir. 2008) quoting Hepperle v. Johnston, 544 F.2d 201, 202 (5th Cir.1976).

[28]   Bell Atl. Corp., 550 U.S. at 555; see Fed.R.Civ.P. 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….”.

[29]   Id., citing Papasan v. Allain, 478 U.S. 265, 286, (1986).

[30]   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”.

[31]   20 U.S.C. §1400 et. seq; M.G.L. 71B; 29 U.S.C. §794; see 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”.

[32]   In the federal law, these rights are protected by the Family Education Rights and Privacy Act (FERPA) 20 USC 1232(g); 34 CFR Part 99.  In Massachusetts, student records are protected by M.G.L. c. 71 §34D; 603 CMR 23.00; see M.G.L. c. 71 §34F.

[33]   20 USC 1417(c); see 20 USC 1412(a)(8).

[34]   See In Re: Boston Pub. Sch., BSEA # 1900241, 24 MSER 241 (Ruling, Berman, 2018),

“where procedural safeguards, including parental access to student records, are deemed an essential component of FAPE, such safeguards should be treated as encompassed in ‘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…’.  As such, the alleged failure of a school district to implement these safeguards may be the proper subject for a due process hearing, particularly when a parent alleges that such failure has deprived a child of FAPE or prevented meaningful parental participation in the Team process”.

[35]   For instance, although a private right of action does not exist under FERPA, parents/students claiming violations of this law can request an investigation and determination from the “Family Policy Compliance Office”.  34 CFR 99.63; see Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 69, holding that there is no private right of action under FERPA, but recognizing that FERPA provides “… parents and students [the option to] file written complaints through this administrative machinery” .  Additionally, claims of violations of the Massachusetts student record laws and policies can be appealed to the superintendent of schools and thereafter the school committee.  603 CMR 23.09.

[36]   20 USC 1412(a)(1)(B); 34 CFR 300.102(a)(1) and (a)(3); see M.G.L. c. 71B § 1; 603 CMR 28.02, definition of “Eligible Student”.

[37]   20 USC 1415(f)(3)(C); 34 CFR 300.507(a)(2); 34 CFR 300.511(e).  Massachusetts does not have a different limitation period for special education due process proceedings.

[38]   20 USC 1415(f)(3)(D); 34 CFR 300.511(f).

[39]   Kobrin v. Board of Registration in Medicine, 444 Mass. 837, 843-44 (2005), concluding that a “final order of an administrative agency in an adjudicatory proceeding … precludes re-litigation of the same issues between the same parties, just as would a final judgment of a court of competent jurisdiction” citing Tuper v. North Adams Ambulance Serv., Inc., 428 Mass. 132, 135 (1998) quoting Stowe v. Bologna, 415 Mass. 20, 22 (1993); In Re: Department of Elementary and Secondary Education and Xili, BSEA # 18-02999, 24 MSER 14 (Ruling, Byrne 2018), holding that “The common law doctrine of estoppel – in this case res judicata and collateral estoppel – prevents BSEA consideration of the Parent’s residency-related claims as a Court in this jurisdiction considered and disposed of the same claims, arising from the same factual allegations against the same party. That ruling is binding on the BSEA”; In Re: The Gifford School and XiLi, BSEA # 18-03736, 24 MSER 18 (Ruling, Byrne 2018), finding that in a case where “[t]he Parent now seeks to assert the same facts and the same claims for the same time period against the same party in interest/privy, [that t]raditional doctrines of estoppel preclude BSEA consideration of those previously determined facts and claims.” (citation omitted).

[40]   Apparel Art Int’l, Inc. v. Amertex Enterprises Ltd., 48 F.3d 576, 583 (1st Cir. 1995).

[41]   Apparel Art Int’l, Inc., 48 F.3d at 583 quoting Allen v. McCurry, 449 U.S. 90, 94 (1980).

[42]   Allen, 449 U.S. at 94; In Re: Sonus Networks, Inc., Shareholder Derivative Litigation, 499 F.3d 47, 56-57 (1st Cir. 2007); Kobrin, 444 Mass. at 843-44; In Re: Student v. Marshfield Public Schools, BSEA # 2209242, 28 MSER 93 (Ruling, Kantor Nir, 2022).

[43]   Breneman v. U.S. ex rel. F.A.A., 381 F.3d 33, 38 (1st Cir. 2004); In Re: Marshfield PS, (Kantor Nir, 2022); see Gonzalez-Pina v. Rodriguez, 407 F.3d 425, 429 (1st Cir. 2005).

[44]   Gonzalez-Pina, 407 F.3d at 430 quoting Jackson v. Coalter, 337 F.3d 74, 85 (1st Cir.2003) quoting Ashe v. Swenson, 397 U.S. 436, 443 (1970).

[45]   Breneman, 381 F.3d at 38.

[46]   Breneman, 381 F.3d at 38; Gonzalez v. Banco Cent. Corp., 27 F.3d 751, 755 (1st Cir. 1994); see Apparel Art Int’l, Inc. v. Amertex Enters., Ltd., 48 F.3d at 583-84, holding that “although a set of facts may give rise to multiple counts based on different legal theories, if the facts form a common nucleus that is identifiable as a transaction or series of related transactions, then those facts represent one cause of action”.

[47]   Doe v. Newton Pub. Sch., 48 F.4th 42, 48 (1st Cir. 2022), “If, following such a hearing, the BSEA renders a decision adverse to either the parents or the school district, then the aggrieved party may ‘bring a civil action challenging the outcome … in either state or federal court.’ … The court in which such an action is brought may consider not only the ‘records of the administrative proceedings’ but also ‘additional evidence at the request of a party.’” (citations omitted).

[48]   Breneman, 381 F.3d at 38; Gonzalez, 27 F.3d at 755, holding that res judicata can sometimes operate to bar maintenance of action by nonparty to initial action.

[49]   Iannocchino 451 Mass. at 636 quoting Bell Atl. Corp., 550 U.S. at 555 (internal citations omitted).

[50]   Bell Atl. Corp., 550 U.S. at 555 citing Papasan v. Allain, 478 U.S. 265, 286, (1986); Ocasio-Hernandez, 640 F.3d at 12, citing Ashcroft, 556 U.S. at 678-79.  Moreover, as further discussed below, Parent and Student have already had an opportunity to provide clarification of their claims.

[51]   Parent and Student were advised in my April Sufficiency Challenge Ruling that they needed to provide greater specificity to their claims, particularly with regard to dates and timeframes.

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

[53]   20 USC §1412(a)(1)(A) and (B); M.G.L. c. 71B §1.  The majority of the due process proceedings before Hearing Officer Berman occurred on or after April 30, 2022.

[54]   See Decision-Making Tool for MCAS Participation by Students with Disabilities found at chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.doe.mass.edu/mcas/alt/essa/decision-tool.pdf.

[55]   M.G.L. c. 71B §2A.

[56]   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).

[57]   I am not insensitive to the concerns raised by Parent and Student as to these claims.  There are significant implications to Student’s life opportunities impacted by his lack of receipt of a diploma, which, if but for a coding error he truly was otherwise entitled to, should be remedied by the parties in a forum that has the ability to do so.  Unfortunately, the BSEA is not the appropriate forum to offer Student such relief.

[58]   Additionally, as to Claims 3 and 7, involving alleged violations of DESE’s general supervision responsibilities, I agree that the BSEA lacks jurisdiction for the reasons set forth in the DESE Defendant’s Motion to Dismiss.  No private right of action for violations of Section 1412 of the IDEA exists under Section 1415 of the IDEA.  Larach-Cohen v. Porter, 2021 WL 1203686, 2 (SDNY 2021); Y.D. v. N.Y. City Dep’t of Educ., 2016 WL 698139 (S.D.N.Y. Feb. 9, 2016); see Coningsby v. Oregon Dep’t of Educ., 2016 WL 4844078, at *5 (D.Or. 2016), aff’d sub nom. M.C. by & through D.C. v. Oregon Dep’t of Educ., 695 F. App’x 302 (9th Cir. 2017) “Accordingly, the Court finds that [the SEA] was properly exempted from the due process proceeding because it, ‘as the SEA, was not involved in the actual provision of [the child’s] IEP’” quoting Chavez ex rel. M.C. v. New Mexico Pub. Educ. Dep’t., 621 F.3d 1275, 1283 (10th Cir. 2010); compare R.V. v. Rivera, 220 F. Supp. 3d 588, 594 (E.D. Pa. 2016) finding the SEA to be a proper party in a FAPE claim against a failed charter school that was no longer in existence, reasoning that,

“[i]t does not follow from this, as [the SEA] fears, that in every instance where an LEA is alleged to have failed to provide a FAPE or otherwise comply with its IDEA obligations an SEA may be named in a due process complaint regarding those allegations. Where there is an existing LEA that could be held responsible for alleged FAPE violations, then it, and not the SEA, would be the proper party in a due process hearing.  Where, as here, there is no other educational agency to which a parent may look to vindicate her child’s rights to a FAPE because the LEA in which the alleged violations occurred has since ceased to exist, the SEA’s obligations as the backstop to the state’s IDEA obligations kick in. Accordingly, [the SEA] was a proper party to the IDEA due process complaint in this case.”

[59]   Breneman, 381 F.3d at 38; In Re: Marshfield PS, (Kantor Nir, 2022); see Gonzalez-Pina, 407 F.3d at 429.

[60]   This is not to say that this claim could not be pursued in another forum of appropriate jurisdiction, particularly in light of Hearing Officer Berman’s conclusions and determinations that the alleged breach did in fact occur.

[61]   Specifically, Hearing Officer Kantor Nir concluded that “Parent has made no allegation that such disclosure deprived (or would deprive) subject Student in the instant matter of a FAPE.  Therefore, in the present matter, there is no relief that I am authorized to grant in response to said disclosure”.  (citations omitted).

[62]   This is not to say that this claim also could not be pursued in another forum with jurisdiction, particularly in light of Hearing Officer Kantor Nir’s conclusions and determinations that the alleged breach did in fact occur.

[63]   The parties participated in a Resolution Session in this matter on May 16, 2023.  Thus, the claim appears to be about an alleged missed resolution session in Ollie I, Ollie II or Ollie III, since under the IDEA the right to a resolution session arise only upon the filing of a due process hearing request by a parent and/or a student.  20 USC 1415(f)(1)(B).

[64]   According to Ollie II, FF#26, a resolution session was held in that matter on October 1, 2020.  It is unclear from the published Decision and Rulings in Ollie I whether a resolution session was held, but, even if it was not Parent can introduce this in the pending appellate proceedings in Ollie I, as discussed above.

[65]   Hearing Officer Berman concluded that “Parent has cited no provision in the relevant law that allows a hearing officer to impose sanctions or penalties on a school district that does not convene a resolution meeting, and I am not aware of any such provision.”  Similarly, I am unaware of any such provision.

[66]   Breneman, 381 F.3d at 38; Gonzalez, 27 F.3d at 755; see Apparel Art Int’l, Inc., 48 F.3d at 583-84.

[67]   20 USC 1415 (i)(2)(c).

[68]   Gonzalez, 27 F.3d at 755.

[69]   Aronovitz v. Fafard, 78 Mass. App. Ct. 1, 7, Ftnt 12 (2010), recognizing that the 1st Circuit in Gonzalez, 27 F.3d at 758 held that “superficial distinctions will be disregarded for preclusion purposes when the nonparty ‘either participated vicariously in the original litigation by exercising control over a named party or had the opportunity to exert such control’”.

[70]   20 USC 1415(f)(3)(C); 34 CFR 300.507(a)(2); 34 CFR 300.511(e).

[71]   20 USC §1412(a)(1)(A) and (B); M.G.L. c. 71B §1.

[72]   Ollie III, Ruling II, Analysis and Conclusions, “Breach of Confidentiality” part; Kantor Nir Matter Ruling, Legal Standards, Part 2; see In Re: Boston PS, (Berman, 2018).

[73]   However, Claim 15 pertains to alleged disclosure of confidential information at a meeting specified as occurring in March 2023.

[74]   As the actual date student turned 22 remains unclear at this time, I use April 29, 2022, for efficiency purposes.  However, as discussed extensively above, student’s right to a FAPE and eligibility under the IDEA ended upon turning 22.  Thus, the actual date this timeframe concludes is the day before his 22nd birthday.

[75]   Parent claims an exception applies to this matter.  Specifically, she alleges that the Defendants “withheld evidence” or that there was information she “just recently discovered in 2022”.  This appears to implicate the second exception to the statute of limitations rather than the first exception.  20 USC 1415(f)(3)(D); 34 CFR 300.511(f). Thus, I consider the applicability of only the second exception to claims occurring prior to May 2, 2021.

[76]   In the original Hearing Request, said Paragraph 4 alleged “Attorney St. Florian and Attorney Melinda Phelps forced me in several IEP and related meetings for the Student to disclose my disabilities when I attempted access (sic) my reasonable accommodations which is IDEA retaliation”.  It appears the Amended Hearing Request revised this statement only by adding “between August 2019 and May 2022” after “related meetings” and “against me for participating in protected activities” at the end.

[77]   Ocasio-Hernandez, 640 F.3d at 12, citing Ashcroft, 556 U.S. at 678-79 (quoting Bell Atl. Corp., 550 U.S. at 555).

[78]   In Ollie III, Ruling II Hearing Officer Berman did not dismiss Parent’s claim that she was denied the reasonable accommodation of a memory aid while participating in an exit meeting on March 25, 2022, which denial prevented her from fully participating in this exit meeting in violation of the IDEA.  Had this claim been raised in this proceeding, it would, therefore, survive and not be precluded under the doctrines of res judicata or issue preclusion.   However, this is not the claim brought by Parent and Student in this matter, nor can I infer this to be the claim alleged in Claim 13, even viewing Claim 13 in the light most favorable to Parent and Student.  Other than referring to “reasonable accommodations” allegedly requested by Parent at various meetings including the March 25, 2023, meeting, Claim 13 is grounded in allegations of retaliation and improper disclosure of Parent’s disability, not denial of a requested accommodation that impacted Parent’s ability to participate in a special education meeting about Student.  Moreover, as it is the disability of a student, not a parent, that the BSEA has authority to adjudicate, Claim 13 is also dismissed as beyond my jurisdiction.

[79]   Breneman, 381 F.3d at 38; Gonzalez, 27 F.3d at 755; see Apparel Art Int’l, Inc., 48 F.3d at 583-84.  Rather, as with the allegations in Claims 6 and 14, Parent’s and Student’s only, proper, recourse is to pursue these claims of “lies” to Hearing Officer Berman, is in the pending appeals of this matter.  20 USC 1415 (i)(2)(c).

[80]   In Re: Fernando and Worcester Public Schools, BSEA # 18-00970, 23 MSER 183 (Ruling, Reichbach, 2017); In Re: Student v. Chicopee Public Schools & DESE, BSEA # 16-08986, 23 MSER 1 (Ruling Berman, 2017); see In Re: Springfield Public Schools & Xylia, BSEA #12-0781, 18 MSER 373 (Ruling, Byrne, 2012).