COMMONWEALTH OF MASSACHUSETTS
DIVISION OF ADMINISTRATIVE LAW APPEALS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Student and Newton Public Schools
BSEA# 25-12686
RULING ON TWO MOTIONS OF PARENTS
This matter comes before the Hearing Officer on Parents’ June 20, 2025 “Motion with Regards to Procedural Violation – Failure to Convene Required Resolution Meeting Under IDEA” (First Motion) and Parents’ “Motion for Additional Relief Sought in a Matter of BSEA 2512686” (Second Motion). On June 25, 2025, the District filed its Response to Parents’ [First Motion] and its Response to Parents’ [Second Motion][1].
For the reasons articulated below, the First Motion is DENIED as moot, the Second Motion is ALLOWED in part and DENIED in part.
RULING ON FIRST MOTION
Parent’s First Motion objects to the District’s waiver of the resolution session since Parents did not so waive it. In response, the District advises that it is not opposed to holding a resolution session and asks that the First Motion be denied as moot or that an order issue to schedule the resolution session within 15 days. Given the Parties’ written statements both now agreeing to participate in a resolution session, the First Motion is hereby DENIED as moot. While an Order requiring the Parties to hold the agreed-upon resolution session is unnecessary, to the extent this has not yet occurred, it shall be scheduled and held forthwith.
RULING ON SECOND MOTION
Parents’ Second Motion advises that it “reassert[s] relief previously sought and assert[s] additional relief for our case as it has become known or appropriate”. It then lists six separate items of requested relief, to wit,
- An Independent Education Evaluation [IEE] in all areas of education, neuropsychology, psychology or educational psychology, occupational therapy, speech and language therapy, and functional behavioral assessment at the district rate or rate of individuals identified by parents, or otherwise, or partial (sic)[;]
- Immediate implementation of an appropriate, reasonably calculated plan aligned with student data and individually tailored to support progress in areas of need and access to curricula [;]
- Compensatory services paid for by hour or total rate by the district in children’s areas of need that have not been provided this year due to the district’s inaction [;]
- Possible compensatory fees for parent[s] counseling, resulting in repeated emotional harm to family by the district [;]
- Reimbursement for assessments or services conducted outside of the school [; and]
- Reimbursement for legal and attorney fees related up to, during, and subsequent to the BSEA case and all related matters”.
The District objects to those certain items that are outside the BSEA’s jurisdiction (Requests 4 and 6). As to the remaining requests, the District relies upon its original Response to the initial Hearing Request as well as its own Hearing Request in a companion matter (assigned BSEA No. 2512781) with regard to Request 1, and disputes that Requests 2, 3 and 5 are warranted.
Given the introductory statement in the Second Motion, an examination of the relief requested in the initial Hearing Request is in order. In Part V of the Hearing Request, the Parents submit as a “proposed resolution” a request for publicly funded IEEs in the areas of Occupational Therapy, Speech and Language and a Functional Behavioral Assessment (FBA); Occupational Therapy (OT), Speech and Language (SL) and Behavioral Support goals and benchmarks that align with Parents’ prior written requests; increased OT to 1-2 hours per week in a push-in or pull-out model; a positive behavior support plan developed from the requested FBA; and “prompt implementation of current and proposed accommodations”. Thus, some of the six items requested in the Second Motion, particularly some of the IEEs in Request 1 and all of Request 2, are incorporated in the Hearing Request. The remaining items requested in the Second Motion, although related to claims contained in the Hearing Request[2],were not there made. Provided these newly requested items of relief are within the jurisdiction of the BSEA they can be included for consideration.
The BSEA is not an agency of general jurisdiction, it is limited to considering “only those claims for which enabling statutes and regulations expressly grant authority”[3]. 20 USC §1415(b)(6) grants parties the right to file timely complaints (with the state educational agency designated to hear the same) “with respect to any matter relating to the identification, evaluation or educational placement of the child, or the provision of a free appropriate public education to such child”[4]. As Requests 1, 2, 3 and 5 (which appear to involve only outside assessments and services administered or provided to Student) are wholly within the BSEA’s limited jurisdiction, they are ALLOWED as additional counts for relief.
However, even for those matters within its jurisdiction, the BSEA is limited as to the remedies it can order. Punitive and tort-like compensatory damages are not available in BSEA due process hearings[5]. Instead, the available compensatory remedies under the IDEA comprise “[a]wards of compensatory education and equitable remedies that involve the payment of money, such as reimbursements to parents for expenses incurred on private educational services to which their child was later found to have been entitled …”[6] (emphasis added).
Thus, as Request 4 seeks “possible compensatory fees for parent[s] counseling” based upon a claim of “repeated emotional harm to [the] family by the District”, it is not the type of relief that is available through a BSEA due process hearing. Notwithstanding its speculative nature, it is a prohibited “tort-like compensatory damage” request that pertains exclusively to services to Parents, not Student. Thus, Parents’ request to have the additional relief identified in Request 4 included for consideration in the instant matter is DENIED.
Finally, as to claims for attorney’s fees in Request 6, the IDEA authorizes the award of such relief, in certain circumstances, to “prevailing parties” pursuant to a claim brought in the district court after the administrative proceedings have concluded[7]. Such a claim is an “independent suit” and is the “‘… only means by which a party may recover attorney’s fees for administrative proceedings, … because the IDEA only authorizes the courts, and not the administrative hearing officer to award the attorney’s fees’”[8]. The BSEA, therefore, has no legal authority to award attorney’s fees, and as such, Parents’ request to have the additional relief identified in Request 6 included for consideration in the instant matter, is also DENIED.
CONCLUSION
The First Request is DENIED as moot. To the extent the Parties have not already engaged in the agreed-upon Resolution Session, it shall occur forthwith. The Second Request is ALLOWED in part and DENIED in part. Specifically, Requests 1, 2, 3, and 5 are ALLOWED, while Requests 4 and 6 are DENIED as additional counts for relief in this matter.
So Ordered by the Hearing Officer
/s/ Marguerite M. Mitchell
Marguerite M. Mitchell
Dated: July 24, 2025
[1] As neither testimony nor oral argument would advance the Hearing Officer’s understanding of the issues involved, this Ruling is issued without a hearing pursuant to Hearing Rules for Special Education Appeals (Hearing Rules)Rule VII(D).
[2] Thus, I consider them to be clarification of issues raised in the initial Hearing Request thereby continuing to be covered under the timeframes for the hearing in this matter, and not requiring an Amended Notice of Hearing, consistent with Hearing Rule I(G).
[3] In Re: Springfield Pub. Schs., BSEA No. 2203555, 28 MSER 111 (Berman, 2022) citing Globe Newspaper Co. v. Beacon Hill Architectural Comm., 421 Mass. 570, 586 (1996) (“Any judicial review of agency action embodies the principle that an agency has no inherent authority beyond its enabling act and therefore it may do nothing that contradicts such legislation”); see In Re: Student & Quincy Pub. Sch. and Dept. of Elementary and Secondary Education, BSEA No. 2408249, 30 MSER 176 (Mitchell, 2024); In Re: Holyoke Pub. Sch. and Jay, BSEA No. 1800619, 24 MSER 20 (Oliver, 2018).
[4] See M.G.L. c. 71B §2A (authorizing the BSEA to resolve special education disputes involving “…(i) any matter relating to the identification, evaluation, education program or educational placement of a child with a disability or the provision of a [FAPE] 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”); 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”).
[5] Diaz-Fonseca v. Puerto Rico, 451 F.3d 13, 36 (1st Cir. 2006) (reasoning that “… the windfall of such awards to IDEA plaintiffs would likely come at the expense of other educational benefits for other schoolchildren by diverting from them scarce educational resources”); see Frazier v Fairhaven School Committee, 276 F.3d 52, 59 (1st Cir. 2002) (noting without explanation that “… the array of remedies available under the IDEA does not include money damages.”).
[6] Nieves-Marquez v. Puerto Rico, 353 F.3d 108, 124 (1st Cir. 2003); see 20 U.S.C. § 1412(a)(10)(C)(ii); Diaz-Fonseca 451 F.3d at 31.
[7] 20 USC 1415(i)(3)(B).
[8] In Re: Student and Arlington Public Schools BSEA No. 2503543, 30 MSER 310(Kantor Nir, 2024) (quoting Zipperer v. Sch. Bd. of Seminole Cnty., Fla., 891 F. Supp. 583, 586 (M.D. Fla. 1995), vacated sub nom. Zipperer v. Sch. Bd. of Seminole Cnty., Fla., 111 F.3d 847 (11th Cir. 1997) [additional internal citations omitted] and Bd. of Educ. of Oak Park v. Nathan R., 199 F.3d 377, 381 & n.10 (7th Cir. 2000) [additional internal citations and quotations omitted]).