COMMONWEALTH OF MASSACHUSETTS
DIVISION OF ADMINISTRATIVE LAW APPEALS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Student & Boston Public Schools and The Department of Elementary and Secondary Education (DESE)
BSEA # 24-11357
RULING ON DESE’S PARTIAL MOTION TO DISMISS
This matter comes before the Hearing Officer on the Department of Elementary and Secondary Education’s Motion to Dismiss & Response to Hearing Request (hereinafter “Partial Motion”) filed with the BSEA on May 17, 2024, seeking dismissal of the “Issues in Dispute” numbered 4, 5 and 6 and paragraphs 3 and 4 of the “Requests for Relief” contained in Student’s Hearing Request (collectively, the Systemic Claims) [1].
For the reasons articulated below, the Partial Motion is ALLOWED.
RELEVANT PROCEDURAL HISTORY
On April 16, 2024, Student filed a Request for Accelerated Hearing against both
the Department of Elementary and Secondary Education (hereinafter “DESE”) and the Boston Public Schools (hereinafter “Boston” or the “District”), identifying 6 “Issues in Dispute” as well as 6 “Requests for Relief”. The first 3 Issues were specific to Student and included 1) whether Student is entitled to receive “stay put” services under his “last IEP”[2]; 2) whether Student is entitled to compensatory services since March 10, 2022; and 3) whether Student is entitled to direct special education services from DESE pursuant to M.G.L. c. 71B §11A. The remaining 3 Issues pertain to claims on behalf of “students with disabilities who are confined to County Houses of Correction” (Issues 4 and 5) or “the class of students who are confined in the Houses of Correction” (Issue 6). Specifically, Issues 4, 5 and 6, respectively, include: whether DESE must “create, maintain, supervise and administer” a FAPE to such students; whether 603 CMR 28.06(9) “improperly abdicate[s]” DESE’s duties to such students under M.G.L. c. 71B §11A; and whether DESE should be ordered to provide direct special education services and a free appropriate public education (“FAPE”) to such students[3].
On April 17, 2024, a Notice of Accelerated Hearing was issued that, among other deadlines, scheduled the Accelerated Hearing for May 16, 2024.
On May 2, 2024, DESE filed an assented to Motion to Further Extend Time to Respond to Hearing Request, on the basis that the Parties had agreed to participate in a Settlement Conference, and that there were overlapping claims raised in the Hearing Request and in a class action lawsuit that had been filed on April 16, 2024 in the Massachusetts Superior Court, entitled Doe et al. v. Johnston et al., Middlesex Superior Court No. 2481 CV 00994 (“Class Action Lawsuit”). The Verified Complaint to the Class Action Lawsuit was attached to this filing and indicates in Paragraph 77 that the plaintiff class consists of “all persons aged 18 to 22 who as of April 16, 2024 or at any time thereafter, (1) are or will be incarcerated in [county Houses of Correction]; (2) have been issued an IEP, and (3) are being denied the full spectrum of instruction and services to which they are entitled under their IEP and/or state law while incarcerated.” The “first cause of action” addresses claims relating to violations of M.G.L. c. 71B § 11A[4] and the “second cause of action” addresses claims relating to violations of M.G.L. c. 71B §§ 3 and 11A and M.G.L. c. 69 §§ 1A and 1B.
On May 3, 2024, Boston filed its Response to the Hearing Request (“BPS Response”) disputing the claims against Boston that were contained in the Hearing Request[5].
On May 6, 2024, Student filed a letter withdrawing the matter from the accelerated track and on May 7, 2024, the Hearing was continued for good cause to July 29, 30 and 31, 2024 upon a joint Motion of the Parties.
On May 17, 2024, DESE filed the underlying Partial Motion and on May 31, 2024, Student filed his Opposition to DESE (sic) Motion to Dismiss (“Opposition”)[6].
On June 10, 2024, the Parties participated in a further Conference Call and agreed that they would file additional legal memorandum and argument to supplement the Partial Motion and the Opposition. Consistent with the ensuing Order relating to these supplemental filings, on June 24, 2024, DESE filed the Department’s Memorandum of Law Concerning Hearing Officer’s Authority to Determine Jurisdictional Issue (DESE Supplemental Argument) and on June 28, 2024, Student filed Student’s Reply to Department’s Memorandum of Law Concerning Hearing Officer’s Authority to Determine Jurisdictional Issues (Student’s Reply).
At DESE’s request, on July 16, 2024, the Parties participated in a Motion Hearing, to address specifically Student’s argument that the Systemic Claims, “as applied” to him, individually, are within the BSEA’s jurisdiction. During this Motion Hearing both DESE and Student requested that I take administrative notice of my July 10, 2024 Ruling on Respondents’ Motions to Dismiss in In Re: Student and Quincy Public Schools and Department of Elementary and Secondary Education, BSEA No. 2408249, I had recently issued, in a companion matter (Companion Ruling), particularly with regard to my analysis of the BSEA’s jurisdiction over systemic and class claims[7]. Student also acknowledged that the wording used in the Hearing Request for Issues 4, 5 and 6, and Requests for Relief 3 and 4, lack clarity as to their application to Student, individually, in addition to applying to the entire group or class of students with disabilities who are confined to County Houses of Correction (CHCs). The Parties, therefore, discussed and agreed to deadlines for filing an Amended Hearing Request, and any oppositions thereto, if necessary, to pursue these individual claims on behalf of Student[8], should the Systemic Claims be dismissed. Finally, Boston confirmed that it did not take any position on either the Partial Motion or the Opposition.
On July 17, 2024, the Hearing was further postponed for good cause to September 23, 24 and 25, 2024, to provide additional time for the Parties to pursue resolution.
FACTUAL BACKGROUND[9]
- Student is 21 years of age, and his special education eligibility under the category of emotional disability is not disputed. He has been eligible for special education services since at least third grade. (Hearing Request; BPS Response).
- Student is currently incarcerated in the Norfolk CHC, where he has been confined, except for limited time periods not relevant to this Ruling, (wherein he was confined to other CHCs), since on or about February 16, 2022. (Hearing Request; BPS Response; Partial Motion).
- Student has not received his high school diploma, nor has he received a high school equivalency diploma (commonly referred to as “a GED”). (Hearing Request).
- The Parties dispute when Norfolk CHC, DESE/Special Education in Institutional Settings (SEIS) and Boston became aware of Student being identified as an eligible special education student, however Boston and DESE/SEIS agree they were so aware of Student’s status by December 2023. (Hearing Request; BPS Response; Partial Motion).
- In 2017, Student’s mother moved from Boston to Maynard with Student, where he enrolled in Maynard Public Schools and was provided with an IEP for a substantially separate or day school placement. In April 2019, Student was placed in foster care in Boston by DCF, whereupon he re-enrolled in Boston Public Schools and began attending McKinley Prep in accordance with an IEP that called for a public day school placement. (Hearing Request; BPS Response).
- In the fall of 2019 Student ran away from his foster placement. His residency until his arrest and incarceration was unknown after this time and he was deemed homeless, although he continued to remain in DCF custody during this period of homelessness. (Hearing Request; BPS Response).
- The last Team meeting for Student was held in October 2019 by Boston, and an IEP dated 10/2/19 to 10/1/20 was proposed calling for Student to be placed in a public day school at McKinley Prep. Student, however, never attended any school in Boston or elsewhere after last attending McKinley Prep in April 2019. The 2019-2020 IEP was never accepted. (Hearing Request; BPS Response).
- Student’s last accepted IEP was the 2018-2019 IEP proposed by Maynard Public Schools. (Hearing Request).
- The Parties dispute if Student “dropped out” or was “withdrawn administratively” by Boston from the Boston Public Schools in December 2019. The Parties also dispute what notification(s), if any, were sent by Boston to Student, Parent and/or DCF, however they agree that after December 2019, Student was no longer enrolled in Boston. (Hearing Request; BPS Response).
- At some point in time between December 2023 and March 2024, Student was re-enrolled in Boston, and Boston provided SEIS with Student’s last accepted IEP[10]. (BPS Response; Partial Motion).
- On April 1, 2024, Student consented to a special education re-evaluation by Boston. However, both security issues involving Student and staffing issues have caused delays in performing this evaluation. (Hearing Request; BPS Response; Partial Motion).
- The Parties dispute if DESE/SEIS and/or Boston have scheduled a Team meeting for Student since he has been confined to Norfolk CHC. DESE claims a Team meeting was scheduled for June 17, 2024, at one point, but noted this may need to be changed due to the challenges involved with performing Student’s re-evaluation[11]. (Hearing Request; BPS Response; Partial Motion).
- The Parties dispute if Student has received any special education or related services while being incarcerated in Norfolk CHC. They also dispute the reason for the non-receipt of services and the nature of any educational services Student has received at Norfolk CHC. Boston advises it has arranged for Student to receive 10 hours of special education services per week, but provision of these services has been delayed awaiting approval by Norfolk CHC. DESE claims SEIS, through the Collaborative for Educational Services (“CEC”), began to provide Student with 1:1 instruction by a certified special educator on April 12, 2024, but ongoing provision of these services has been delayed at times due to security issues involving Student. Student claims he has only received instruction to prepare him to receive a GED. (Hearing Request; BPS Response; Partial Motion).
POSITION OF THE PARTIES
DESE asserts that the BSEA lacks jurisdiction over specific “Issues in Dispute” and is unable to grant the identified “Requests for Relief” as they involve systemic claims made on behalf of a class of similarly situated students to Student (namely students eligible for special education who are also confined to CHCs) or seek determinations about DESE’s general obligations to comply with state special education laws that is “unrelated to the specific question of implementation of this particular Student’s IEP”. DESE cites to prior BSEA decisions that dismissed class claims for lack of subject matter jurisdiction. DESE further raises procedural concerns of administrative and judicial efficiency and the risk of “conflicting determinations” with respect to these claims being simultaneously pending before both the BSEA and the Superior Court.
Student agrees that as a threshold issue, the BSEA has the authority to determine whether it has jurisdiction over all claims raised in the Hearing Request, including the Systemic Claims, notwithstanding their simultaneous pendency in the Superior Court, but contends that at this stage of the proceeding, none of the claims should be dismissed. According to Student, other than prior BSEA decisions dismissing class claims, there is no explicit state or federal legal prohibition precluding the BSEA from adjudicating class claims, or determining the validity of state special education regulations, both generally and as applied to a particular case. Prior BSEA decisions are not binding from hearing officer to hearing officer, and “a class action approach is the most efficient and effective way to protect” all students who have allegedly not received a FAPE and are involved in the Systemic Claims. Further, given the BSEA’s particularized expertise over the special education elements of the Systemic Claims, Student argues that the BSEA should maintain jurisdiction over all claims in order to establish an appropriate record for the Superior Court to reference with respect to how the relevant laws and regulations have been “applied” in the context of a fact specific case. Student further relies on select BSEA decisions wherein Hearing Officers kept open claims relating to whether or not general policies and procedures resulted in a denial of a FAPE for a specific student. Finally, Student argues that despite the words used in the Hearing Request for the Systemic Claims, these Claims could and “should be resolved in the context of the matter of the Student who has initiated this hearing process” or involve a request for “broader relief [that] is within the jurisdiction and discretion of the BSEA” given its “ultimate authority” to determine special education issues for students in the Commonwealth.
LEGAL STANDARDS
- 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 lack of BSEA jurisdiction over a claim, or if the party requesting the hearing fails to state a claim upon which relief can be granted[12]. These Rules and Regulations are analogous to Rules 12(b)(6) of both the Federal and Massachusetts Rules of Civil Procedure (“FRCP” and “MRCP”, respectively), and thus the BSEA is guided by these Rules in its analysis of motions requesting dismissal of claims.
To survive a motion to dismiss, there must exist “factual ‘allegations plausibly suggesting (not merely consistent with)’ an entitlement to relief…”[13]. 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”[14]. 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) ….”[15].
Consistent with FRCP 8(a), hearing requests filed under the IDEA need only consist of “notice pleadings”, i.e., sufficient so as to provide fair notice to the opposing party of the nature of the dispute[16]. However, “[w]hile …. detailed factual allegations” are not necessary, “… a [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”[17].
- Jurisdiction of BSEA.
Unlike a court with general jurisdiction, the BSEA may consider only those claims for which enabling statutes and regulations expressly grant authority”[18]. Thus, claims that do not fall under these laws and regulations must be dismissed as beyond the jurisdictional authority of the BSEA.
The IDEA grants parties the right to file timely complaints (within its two year statute of limitations[19]) “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”[20]. 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”[21].
Further, as I recently explained in the Companion Ruling, under federal and state special education laws and regulations, special education eligible students with disabilities who are incarcerated in CHCs have a right to a FAPE and to receive special education services from DESE and local school districts, among other entities[22]. As in that case, while certain exceptions exist as to the applicability of some of the rights protected by the IDEA with respect to certain eligible students in adult correctional facilities, they do not apply here[23].
Guided by this legal authority, I turn to the Partial Motion.
APPLICATION OF LEGAL STANDARDS
After reviewing DESE’s Partial Motion and Student’s Opposition, as well as DESE’s Supplemental Argument, and Student’s Reply[24] in the light most favorable to Student, the non-moving party, I find that the BSEA lacks jurisdiction to consider the Systemic Claims for the reasons pertaining to the BSEA’s lack of subject matter jurisdiction over Systemic Claims explained in my Companion Ruling. Reference is again made to my Companion Ruling, which is herein adopted and incorporated herein by reference[25].
To summarize my conclusions in said Companion Ruling, Student’s contention that there must be explicit legal exclusion of the BSEA authority over systemic claims in order for the BSEA to so lack such jurisdictional authority fails to consider that the BSEA is an agency of limited jurisdiction. As such, rather than having its jurisdiction expressly excluded by law, the BSEA’s jurisdiction must be explicitly provided for by statute. As the BSEA’s enabling legislation specifically references “the child” in the singular rather than plural[26], it is clear from this statute that the BSEA is only able to consider cases and claims on an individual student-specific basis, rather than cases or claims made on behalf of a group of students. Further, I agree with the decisions of prior hearing officers, while not binding on me, that have concluded the BSEA lacks jurisdiction over systemic or class claims, and I find their reasoning to be both sound and appropriate[27].
With regard to Student’s argument that the BSEA has jurisdiction over the Systemic Claims, “as applied” to and “in the context of the matter of the Student who has initiated this hearing process”, however, I concur with Student that if such claims have been made, they are within the jurisdiction of the BSEA[28]. The BSEA has jurisdiction to consider the application of the special education laws and regulations generally applicable to students with disabilities who are incarcerated in CHCs, in the context of the specific facts of an individual student’s circumstances. The BSEA also has jurisdiction to consider the implementation of these laws and regulations with respect to a specific student, by the agencies and entities responsible for providing a FAPE to such students, including but not limited to DESE[29].
However, despite considering the obligation to provide only “notice pleadings”, and viewing the phrasing of “Issues in Dispute” 4, 5 and 6 and “Requests for Relief” 3 and 4 in the light most favorable to Student, I do not find Student to have made individual claims within the Systemic Claims. None of the language used in setting forth these Systemic Claims (quoted in footnote 3, supra), involves allegations specific to Student, or otherwise references, in any way, Student specifically. Given this, while, if properly pled, there may be reasons to support maintaining the Systemic Claims “as applied” to Student, here I am unable to consider Student’s arguments for doing so, as I do not find the Systemic Claims as drafted to be specific to Student.
This Ruling, therefore, is limited to analysis of the Systemic Claims as presented – i.e., from a class-based perspective. Should the Hearing Request be amended to add claims specific only to Student, as opposed to all students with disabilities who are incarcerated in adult CHCs, then, such new claims would resolve the jurisdictional issues with the Systemic Claims[30]. However, as no such amendment has occurred, to date, the Systemic Claims, as presented, are hereby Dismissed with prejudice.
ORDER
The Partial Motion is ALLOWED. “Issues in Dispute” 4, 5 and 6 and “Requests for Relief” 3 and 4 of the Hearing Request are DISMISSED with prejudice, as presented.
Only the following issues remain for hearing in this matter at this time:
- Whether Student is entitled to receive “stay put” services under his last IEP[31];
- Whether Student is entitled to compensatory services since March 10, 2022; and
- Whether Student is entitled to direct special education services from DESE pursuant to M.G.L. c. 71B §11A.
As per the agreement of the Parties at the Motion Hearing, Student may file an Amended Hearing Request to raise, only on a Student-specific basis, the claims made in Issues 4 and 5[32] on or before the close of the business day on August 7, 2024. DESE and Boston shall advise if they intend to object to the Amended Hearing Request within two business days thereafter (i.e., on or before the close of the business day on August 9, 2024, assuming the Amended Hearing Request is filed on August 7, 2024).
Accordingly, this matter shall proceed to Hearing on September 23, 24 and 25, 2024 as per my July 17, 2024, Ruling.
By the Hearing Officer,
/s/ Marguerite M. Mitchell
Marguerite M. Mitchell
Date: July 24, 2024
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
EFFECT OF FINAL BSEA ACTIONS AND RIGHTS OF APPEAL
Effect of BSEA Decision, Dismissal with Prejudice and Allowance of Motion for Summary Judgment
20 U.S.C. s. 1415(i)(1)(B) requires that a decision of the Bureau of Special Education Appeals be final and subject to no further agency review. Similarly, a Ruling Dismissing a Matter with Prejudice and a Ruling Allowing a Motion for Summary Judgment are final agency actions. If a ruling orders Dismissal with Prejudice of some, but not all claims in the hearing request, or if a ruling orders Summary Judgment with respect to some but not all claims, the ruling of Dismissal with Prejudice or Summary Judgment is final with respect to those claims only.
Accordingly, the Bureau cannot permit motions to reconsider or to re-open either a Bureau decision or the Rulings set forth above once they have issued. They are final subject only to judicial (court) review.
Except as set forth below, the final decision of the Bureau must be implemented immediately. Pursuant to M.G.L. c. 30A, s. 14(3), appeal of the decision does not operate as a stay. This means that the decision must be implemented immediately even if the other party files an appeal in court, and implementation cannot be delayed while the appeal is being decided. Rather, a party seeking to stay—that is, delay implementation of– the decision of the Bureau must request and obtain such stay from the court having jurisdiction over the party’s appeal.
Under the provisions of 20 U.S.C. s. 1415(j), “unless the State or local education agency and the parents otherwise agree, the child shall remain in the then-current educational placement,” while a judicial appeal of the Bureau decision is pending, unless the child is seeking initial admission to a public school, in which case “with the consent of the parents, the child shall be placed in the public school program.”
Therefore, where the Bureau has ordered the public school to place the child in a new placement, and the parents or guardian agree with that order, the public school shall immediately implement the placement ordered by the Bureau. School Committee of Burlington v. Massachusetts Department of Education, 471 U.S. 359 (1985). Otherwise, a party seeking to change the child’s placement while judicial proceedings are pending must ask the court having jurisdiction over the appeal to grant a preliminary injunction ordering such a change in placement. Honig v. Doe, 484 U.S. 305 (1988); Doe v. Brookline, 722 F.2d 910 (1st Cir. 1983).
Compliance
A party contending that a Bureau of Special Education Appeals decision is not being implemented may file a motion with the Bureau of Special Education Appeals contending that the decision is not being implemented and setting out the areas of non-compliance. The Hearing Officer may convene a hearing at which the scope of the inquiry shall be limited to the facts on the issue of compliance, facts of such a nature as to excuse performance, and facts bearing on a remedy. Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief, including referral of the matter to the Legal Office of the Department of Elementary and Secondary Education or other office for appropriate enforcement action. 603 CMR 28.08(6)(b).
Rights of Appeal
Any party aggrieved by a final agency action by the Bureau of Special Education Appeals may file a complaint for review in the state superior court of competent jurisdiction or in the District Court of the United States for Massachusetts. 20 U.S.C. s. 1415(i)(2).
An appeal of a Bureau decision to state superior court or to federal district court must be filed within ninety (90) days from the date of the decision. 20 U.S.C. s. 1415(i)(2)(B).
Confidentiality
In order to preserve the confidentiality of the student involved in these proceedings, when an appeal is taken to superior court or to federal district court, the parties are strongly urged to file the complaint without identifying the true name of the parents or the child, and to move that all exhibits, including the transcript of the hearing before the Bureau of Special Education Appeals, be impounded by the court. See Webster Grove School District v. Pulitzer Publishing Company, 898 F.2d 1371 (8th. Cir. 1990). If the appealing party does not seek to impound the documents, the Bureau of Special Education Appeals, through the Attorney General’s Office, may move to impound the documents.
Record of the Hearing
The Bureau of Special Education Appeals will provide an electronic verbatim record of the hearing to any party, free of charge, upon receipt of a written request. Pursuant to federal law, upon receipt of a written request from any party, the Bureau of Special Education Appeals will arrange for and provide a certified written transcription of the entire proceedings by a certified court reporter, free of charge.
[1] This Ruling only addresses dismissal of the identified “Issues in Dispute” and “Requests for Relief”, as they are the only aspects of the Hearing Request for which dismissal is sought in the Partial Motion. The remainder of the Partial Motion consists of a Response consists of a Response to the remaining allegations, issues and requests for relief as contained in the Hearing Request, and thus are not considered for dismissal purposes in this Ruling.
[2] It is unclear from the Hearing Request what the IEP dates are for which “stay put” services are sought. Issue in Dispute #1 references IEP dates of 11/2/2022 to 11/1/2023, however this appears to be a typographical error based on the content in the remainder of the Hearing Request. Other potential “stay put” IEPs referenced in the Hearing Request involve an IEP dated 10/2/19 to 10/1/20, that appears to be Student’s last proposed IEP calling for placement at a public day school, McKinley Prep in Boston; and a 2018-2019 IEP that appears to be Student’s “last accepted IEP” from Maynard Public Schools, calling for placement at a public day school, Orchard Street Academy.
[3] “Issues in Dispute” (4), (5) and (6) are set forth in their entirety as:
“4. Is MADESE required to create, maintain, supervise and administer a system that provides FAPE to students with disabilities who are confined in the Houses of Corrections?; 5. Do the provisions of 603 CMR 603 CMR 28.06(9) improperly abdicate the duty of MADESE pursuant to G.L. c.71B sec. 11a (sic) to provide special education services to students with disabilities who are confined in the county Houses of Correction?; and
6. Should the Hearing Officer enter an order that requires MADESE to provide direct special education services to the class of students who are confined in the Houses of Correction and who are not currently receiving a free and appropriate public education?”
Additionally, “Requests for Relief” (3) and (4) are set forth in their entirety as:
“3. The Hearing Officer find that MADESE has improperly abdicated the responsibility established by the legislature pursuant to G.L. c. 71B, § 11A to directly provide special education services in the county Houses of Correction; and
4. The Hearing Officer order that MA DESE to provide direct special education services to class of students who are confined in the Houses of Correction and who are not currently receiving a free and appropriate public education”
[4] M.G.L. c. 71B §11A, entitled “Incarcerated Children with a Disability; Special Education.” states in its entirety that “The department of education shall provide special education to school aged children with a disability who are incarcerated in county houses of correction.”
[5] Boston also asserted a challenge as to its programmatic or fiscal responsibility for Student; however, it did not seek to dismiss itself as a party to this proceeding, and this Ruling does not address this challenge.
[6] The deadline for filing this Opposition was extended by agreement of the Parties and upon approval of the Hearing Officer.
[7] Of note, the Class Action Lawsuit was also submitted into the record of the companion matter, as said Class Action Lawsuit involves claims for relief with regard to both Student in this matter and the student in that matter, both of whom are currently incarcerated in a CHC.
[8] The Parties also discussed that Issue 3 in the Hearing Request appears to consist of an individual claim on behalf of Student with regard to the group/class claims made in Issue 6. As DESE has not sought dismissal of Issue 3, should Student ultimately seek to amend the Hearing Request, as discussed at the Motion Hearing, he need only seek to add individual claims of the group/class claims made in Issues 4 and 5.
[9] The factual statements contained herein are taken as true for purposes of this Ruling only.
[10] It is unclear from the pleadings if this was the 2018-2019 IEP which was actually the last accepted IEP or the 2019-2020 IEP, which had not been accepted.
[11] Based upon a written Status Report filed by Boston on July 18, 2024, the evaluation remains in-process at this time and is expected to be completed for a Team Meeting scheduled for September 5, 2024.
[12] 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.
[13] Iannocchino v. Ford Motor Co., 451 Mass. 623, 636 (2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)).
[14] Blank v. Chelmsford Ob/Gyn, P.C., 420 Mass. 404, 407 (1995); 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) (“[w]hen ruling on a 12(b)(6) motion to dismiss for failure to state a claim, the [hearing officer] may consider only the facts alleged in the pleadings, documents attached as exhibits or incorporated by reference in the complaint, and matters of which [administrative] notice may be taken”).
[15] Iannocchino 451 Mass. at 636 (quoting Bell Atl. Corp., 550 U.S. at 555); see Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 12 (1st Cir. 2011).
[16] FRCP 8(a), “Claim for Relief. A pleading that states a claim for relief must contain: … (2)a short and plain statement of the claim showing that the pleader is entitled to relief…”; see Bell Atl. Corp., 550 U.S. at 555.
[17] Bell Atl. Corp., 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)).
[18] See 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”.
[19] 20 US 1415(f)(3)(C).
[20] 20 USC §1415(b)(6); see 34 CFR 300.507(a)(1).
[21] See also 603 CMR 28.08(3)(a) (authorizing 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).
[22] M.G.L. c. 71B §11A; 34 CFR 300.2(b)(1)(iv); 603 CMR 28.06(9); see M.G.L. c. 71B §1; Letter to Colleague (OSERS, December 5, 2014); Letter to Yudien, (OSERS, August 19, 2003). See also In Re: Student and Quincy Public Schools and Department of Elementary and Secondary Education, BSEA #2408249 (Ruling, Mitchell, 2024), specifically, Section 3 under “Legal Standards” and Section II, under “Application of Legal Standards”. This Companion Ruling is incorporated herein by reference.
[23] 34 CFR 300.102(a)(2); 34 CFR 300.324(d); see Letter to Duncan, (OSERS, January 29, 2019). Also, note that the IDEA requirements to be provided with transition planning or transition services do not apply for eligible students who will have aged out of eligibility prior to being released from prison, after considering their sentence and eligibility for early release. Further, if there is a “bona fide security or compelling penological interest that cannot otherwise be accommodated”, an IEP team may modify an IEP of an eligible student in an adult prison, provided the modifications do not otherwise fail to address all required elements of an IEP or fail to comply with the LRE requirements of the IDEA.
[24] I also take administrative notice of my Companion Ruling and the Verified Complaint in the Class Action Lawsuit as it is filed in the record in this underlying proceeding and is part of the record of a pending court action. See Nollet, 83 F.Supp.2d 208; Evid. Code §452(c) and (d) (authorizing judicial notice of any “[o]fficial acts of the legislative, executive, and judicial departments of the United States,” and “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States.”)
[25] In Re: Student and Quincy Public Schools and Department of Elementary and Secondary Education, BSEA #2408249 (Ruling, Mitchell, 2024). Further, I note that Student’s knowledge of the BSEA’s historical position on lack of subject matter jurisdiction over Systemic Claims is evidenced by Paragraphs 11, and 87 of the Class Action Lawsuit, indicating that the BSEA has “repeatedly declined to decide class claims” and has “repeatedly held that it has no authority to order class-wide, systemic relief and has never done so.”
[26] By law, the BSEA’s jurisdiction extends only to 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” (emphasis added). M.G.L. c. 71B §2A.
[27] In Re: Holyoke Pub. Schools and Jay, BSEA #1800619, 24 MSER 20 (Ruling, Oliver, 2018); In Re: Springfield Pub. Schools, BSEA #1309716,19 MSER 294 (Ruling, Oliver, 2013).
[28] See 20 USC §1415(b)(6); M.G.L. c. 71B §2A; 34 CFR 300.507(a)(1); 603 CMR 28.08(3)(a); In Re: Student & Boston Pub. Sch. & DESE, BSEA #20-08568, 26 MSER 140 (Ruling, Berman, 2020) (finding sufficient allegations specific to a Student to deny dismissal of claims against DESE involving a failure to provide that Student with a FAPE while incarcerated in DYS or to otherwise meet its obligations to that Student pursuant to 603 CMR 28.06(9)).
[29] Id. In fact, DESE does not dispute this, as evidenced by the Partial Motion seeking dismissal of only Issues 4, 5 and 6 and Requests for Relief 3 and 4, rather than all Issues, including Issue 3, that is a Student-specific claim within the claims raised in Issue 6.
[30] They would also, therefore, be different claims than those raised in the Class Action Litigation, thereby avoiding simultaneous pendency concerns raised by DESE.
[31] Prior to the Hearing, the Parties shall clarify which IEP or IEPs apply to this “stay put” claim.
[32] As previously noted, the Hearing Request already contains, as Issue 3, an individual-based claim of the claims raised in Issue 6.