In Re: Student & Quincy Public Schools & Department of Elementary and Secondary Education BSEA #24-08249

COMMONWEALTH OF MASSACHUSETTS

DIVISION OF ADMINISTRATIVE LAW APPEALS

BUREAU OF SPECIAL EDUCATION APPEALS

In Re: Student & Quincy Public Schools & Department of Elementary and Secondary Education 

BSEA #24-08249

RULING ON RESPONDENTS’ MOTIONS 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 (“DESE Motion”) and the Quincy Public School’s Response to Student’s Hearing Request/Motion to Dismiss (“Quincy Motion”, collectively “Motions” or “Motions to Dismiss”) filed with the BSEA on March 11, 2024, and March 12, 2024, respectively, and further supplemented on May 20, 2024 and June 4, 2024, respectively. 

Neither party has requested a hearing on the Motions. Because 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 Bureau of Special Education Appeals Hearing Rule VII(D).  For the reasons articulated, the Motions are ALLOWED in part and DENIEDin part. 

RELEVANT PROCEDURAL HISTORY

On February 15, 2024, Student filed a Hearing Request with Attachments A to D[1] against both the Department of Elementary and Secondary Education (“DESE”) and the Quincy Public Schools (“Quincy” or the “District”) alleging[2] both DESE and Quincy (collectively, “Individual Claims”):

1. failed to identify Student as a student with a disability in violation of their “child find” obligations from February 2020 through January 4, 2023[3] (“Child Find Claim”);
2. failed to provide Student with a free, appropriate public education (“FAPE”) by:
   1. proposing IEPs dated 12/12/22-12/12/23 (“22-23 IEP”) and 12/6/23 – 12/5/24 (“23-24 IEP”) that were not reasonably calculated to provide Student with a FAPE;
   2. not “… provid[ing] [Student] with a general education program that meets state standards and allows him to progress from grade to grade from January 4, 2023, to the present”; and
   3. not providing Student with additional services in the areas of academic achievement and transition (“FAPE Claims”); and

3. failing to educate Student in the least restrictive environment (“LRE”) due to Student being educated only in a 1:1 or independent setting from January 4, 2023, through the present (“LRE Claim”). 

Student also alleged systemic failures by DESE, collectively “Systemic Claims”, as to:

1. its obligations under M.G.L. c. 71B §11A to provide “students with disabilities all legally mandated instruction and services that meet the requirements of state and federal law”;
2. its obligations to “create, maintain, supervise and administer a system that provides students with disabilities with all legally mandated instruction and services that meet the requirements of state and federal law”; and
3. its alleged improper abdication of its duties under M.G.L. c. 71B §11A to provide “special education services to students with disabilities who are confined to County Houses of Correction” (CHCs) by virtue of its adoption of 603 CMR 28.06(9). On March 11, 2024, DESE filed the DESE Motion that included Attachments A to E[4].  In addition to responding to the Hearing Request, DESE sought dismissal of all of the Systemic Claims, as well dismissal of all the Individual Claims against it, arguing that it has already remedied its obligations with regard to the FAPE Claim from January 4, 2023, to May 25, 2023, and that the BSEA cannot award any relief from DESE/SEIS for any of the remaining Individual Claims[5]. 

On March 12, 2024, Quincy filed the Quincy Motion.  In addition to responding to the Hearing Request, Quincy sought dismissal of the Systemic Claims and all claims pertaining to “the provision of general education services”[6] on jurisdictional grounds. Further it sought dismissal of the Child Find Claim (Claim 1, supra) against Quincy, prior to February 14, 2022, as being outside the statute of limitations. 

On March 29, 2024[7], Student filed three separate oppositions (collectively “Oppositions”), entitled, Student’s Opposition to [DESE’s] Motion to Dismiss Student’s Individual Claims (hereinafter “DESE Individual Claims Opposition”), Student’s Opposition to [Quincy’s] Motion to Dismiss Claims Regarding Failure to Provide General Education Services (hereinafter “Quincy General Education Claim Opposition”) and Combined Opposition to Defendants (sic) [Quincy] and [DESE’s] Motion to Dismiss as to Systemic Claims (hereinafter “Systemic Claims Opposition”), requesting the Motions be denied in their entireties, contending that all the claims in the Hearing Request are valid and appropriate and within the jurisdiction of the BSEA to determine at a hearing on the merits. 

On April 23, 2024, DESE filed a Notice of Significant Development (“Notice”) advising that it was recently served with a Verified Class Action Complaint for Declaratory and Injunctive Relief (“Class Action Complaint”) in a matter filed in the Middlesex Superior Court entitled “Doe et al. v. Johnston et al.”, docket number 2481CV00994.  According to DESE, the Class Action Complaint “asserts similar claims and seeks overlapping relief as is sought in the instant BSEA matter” and Student appears to be one of the identified Plaintiffs.  A copy of this Complaint was attached to the Notice.   

On May 15, 2024, Student filed Student’s Briefing in Opposition to [DESE’s] and [Quincy’s] Motions to Dismiss Under the Summary Judgment Standard (“Supplemental SJ Opposition”) and “Student’s Suppemental (sic) Brief on the Issue of Concurrent Jurisdiction” (“Supplemental Concurrent Jurisdiction Opposition”)[8] arguing that the BSEA can consider the Systemic Claims concurrently with the Superior Court and requesting that summary judgment be denied as many issues of material fact exist and DESE is not entitled to prevail as a matter of law.  Student also contended that as a matter of law, Quincy may be liable for his FAPE Claim as to the inadequacy of his general education program. 

On May 20, 2024, Quincy filed [Quincy’s] Opposition to Student’s Briefing in Opposition to DESE and [Quincy’s} Motion to Dismiss Under the Summary Judgment Standard and Student’s Supplemental Brief on the Issue of Concurrent Jurisdiction (“Quincy’s Supplemental Memo”) reiterating its request for dismissal, or in the alternative summary judgement on the claims that Student was denied a FAPE by Quincy due to being provided with an inadequate general education program during his period of incarceration. 

On May 28, 2024, Student filed Student’s Response to [Quincy’s Supplemental Memo] (“Student’s Response”), to address specifically, Quincy’s arguments with respect to his claim that he was denied a FAPE by not being provided with an “appropriate secondary school curriculum that meets state standards, including a full school day”. 

Finally, on June 4, 2024, DESE submitted a Memorandum of Law in Further Support of [DESE’s Motion] (“DESE’s Supplemental Memo”) arguing that Student’s Systemic Claims should be dismissed in their entirety, that Student’s individual Child Find Claim (Issue 1, above), FAPE Claim as to inadequate IEPs (Issue 2(a), above) and LRE Claim (Issue 3, above) should be dismissed as to DESE, and that Student’s FAPE Claim relating to an inadequate general education program (Issue 2(b), above), should be dismissed in its entirety.  However, DESE clarified that it does not seek dismissal of the compensatory claims with regard to any compensatory services for any educational services DESE was responsible to provide Student that he has not otherwise received from DESE[9]. 

FACTUAL BACKGROUND[10]

1. Student is 20 years of age.  He is eligible for special education under the category of a specific learning disability in Math.  (Hearing Request; Quincy Motion).
2. Student is currently incarcerated in the Norfolk CHC, where he has been confined, since on or about February 15, 2022, except for limited time periods, not relevant to this Ruling, wherein he was confined to other CHCs.  (Hearing Request; DESE Motion; Quincy Motion).
3. At the time of Student’s incarceration, he had not been found eligible for special education or related services.  (Hearing Request; DESE Motion; Quincy Motion).
4. Prior to his incarceration, Student attended Quincy High School and, starting in February 2020, was placed in the GOALS program, a substantially separate in-District special education program (“GOALS”).  His placement at GOALS was not made for disciplinary reasons.  Student was never evaluated or found eligible for special education prior to this placement being effectuated, nor had he or Parent ever been provided with any information regarding his potential eligibility for special education, prior to the GOALS placement.  (Hearing Request; Quincy Motion).
5. At the time of Student’s incarceration, he had not yet graduated from high school or received his high school diploma or its equivalent.  (Hearing Request).
6. On March 1, 2022, Quincy un-enrolled Student from Qunicy Public Schools.  The Parties dispute if Quincy followed the requirements of M.G.L. c. 76 §18 with regard to this un-enrollment.  (Hearing Request; Quincy Motion).
7. On September 29, 2022, Student’s attorneys contacted Quincy to request educational services, a special education evaluation and to obtain more information regarding Student’s un-enrollment.  In response, Quincy agreed to re-enroll Student and conduct a special education evaluation.  A consent to evaluate was provided to Student’s attorney on October 6, 2022, and Student accepted the proposed evaluation on October 18, 2022.  (Hearing Request).
8. Commencing in November 2022, Quincy provided Student with access to online credit recovery courses using the Acellus program (“Acellus”), and he was enrolled in 14 courses.  Student’s access to Acellus was increasingly limited and it did not involve any live instruction.  The Parties dispute the amount of in-person support Student was given to set up and navigate Acellus.  They further provide differing accounts of Student’s schedule with Acellus between November 2022 and December 2023.  Student’s access varied from between 1 to 5 one to two hour sessions per week.  The Parties also dispute the reason for any reduction in Student’s access to Acellus.  Additionally, regular sessions were often cancelled.  (Hearing Request; DESE Motion; Quincy Motion).
9. On December 12, 2022, a Team meeting was held to review the results of Student’s special education evaluation and determine eligibility for special education services.  Student was found eligible, and the Team proposed the 22-23 IEP[11] calling for Student to receive 2 hours per week of individualized instruction in Math by a special education math teacher during the academic year.  (Hearing Request; DESE Motion; Quincy Motion).
10. On January 3, 2023, Quincy notified SEIS that Student was found eligible for special education services, and that he wanted to attain his high school diploma and not a high school equivalency certificate.  In response, SEIS sent Quincy a letter summarizing the SEIS program available for Student, confirmed Student was interested in receiving special education services and provided a signed consent form from Student for Quincy to share Student’s records with SEIS.  Quincy provided SEIS with a copy of the 22-23 IEP that day.  (DESE Motion).
11. On January 4, 2023, Student signed and fully accepted the 22-23 IEP.  (Hearing Request; Quincy Motion).
12. Student did not receive any of the math services called for in the 22-23 IEP until May 25, 2023.  SEIS did not identify a special education teacher to work with Student until April 28, 2023.  He only received 8 total sessions of math for the remainder of the 22-23 school year (through June 22, 2023).  (Hearing Request; DESE Motion).
13. On June 23, 2023, a progress report was issued indicating Student made progress on 3 of his 5 objectives in his Math goal at that point in time.  (DESE Motion).
14. On June 30, 2023, Student partially rejected the previously accepted 22-23 IEP, now accepting the services but rejecting the IEP to the extent that it did not provide him with additional services to help him make progress with his Acellus program.  (Hearing Request).
15. Math services resumed on September 8, 2023.  On September 14, 2023, a Team meeting was held to review the partial rejection, Student’s request for additional support and Student’s mental health needs.  An IEP Amendment was developed as a result of this meeting reflecting the Team’s agreement to provide Student with counseling support 30 minutes per week.  The Team also discussed and agreed to a compensatory service plan of an additional 1 or 2 hours of individualized math services from the SEIS math teacher to address the delay in starting the math services called for in the 22-23 IEP and any missed services, for a total of 34 hours.  However, the Team did not agree to Student’s additional requests for an academic achievement goal, and 5.5 hours of structured learning time each day.  It is also unclear how the Team responded to Student’s request for an additional 4 hours of individualized services with Acellus weekly, although it appears some additional hours were agreed to at this time.  The Parties also dispute the reason for Student’s failure to receive all his services, and whether or not Student had access to additional teacher support in addition to the SEIS special education teacher.  (Hearing Request; DESE Motion; Quincy Motion).
16. On September 20, 2023, Student accepted the additional services in the IEP Amendment but partially rejected it for failing to provide 5.5 hours of structured learning time, an academic achievement goal and academic support services (Hearing Request).
17. On November 14, 2023, a further progress report was issued indicating Student made progress in all 5 of the objectives of his Math goal.  (DESE Motion).
18. On December 6, 2023, the Team reconvened for Student’s annual review and proposed the 23-24 IEP.  The Team discussed that Student had only received 2 counseling sessions to date.  The SEIS special education teacher informed the Team that Student makes excellent progress working directly with her but struggles to attend and make progress when working independently on Acellus.  The Team also discussed Student’s current transcript and the remaining courses and credits he would need to graduate.  The Team agreed to add counseling[12], academic achievement and transition goals, but indicated those goals could be worked on within the current service delivery time already provided to Student.  (Hearing Request; DESE Motion).
19. The 23-24 IEP also included the following references to “1:1” or “individual” instruction and services: “Present Levels of Educational Performance: A – General Curriculum” (PLEP-A), “mathematics” is checked, and states under “Content” that “[Student] benefits from 1:1 or small group and direct instruction with the use of a multi-sensory approach whenever possible”; “Present Levels of Educational Performance: B – Other Educational Needs” (PLEP-B), “social/emotional needs” is checked, and states under “Methodology/Delivery of Instruction” “1:1 setting”; and the “Nonparticipation Justification” states that “[Student] is in need of individualized support services in order to successfully access the curriculum in math 2 x 60/week.  He requires a therapeutic and supportive setting in order to meet with success and will also meet individually with a school counselor 1 x 30/week.”  (Hearing Request).
20. The only change to Student’s service delivery grid from the 22-23 IEP was the addition of a 20 minute consultation per month between the special education teacher and the counselor in the A grid to work on all 4 of Student’s Goals (in the areas of Mathematics, Academic Support, Transition and Counseling).  The 23-24 IEP continued to propose that Student receive 2 hours per week of mathematics support with a special education teacher and 30 minutes per week of counseling support with a guidance counselor both in the C-Grid.  Although no placement type was noted on the 23-24 IEP (as the placement box indicating Student was incarcerated in a CHC was checked instead), the proposed location was indicated to be at GOALS.  (Hearing Request; DESE Motion; Quincy Motion).
21. On January 17, 2024, Student partially rejected the IEP and consented to the placement.  SEIS received a copy of this partial rejection on January 19, 2024.  Student accepted all proposed goals and services but rejected the IEP to the extent that it did not provide 5.5 hours per day of structured learning time (noting that as of that time he was receiving 2 hours of math services per week and 1 hour per week of time to use Acellus), the lack of any educational instruction for his Acellus courses, and the lack of any additional service time to work on the new goals added to his IEP.  He also sought revisions to the Student Concerns section, the Student Strengths and Key Evaluation Results section, and the specific content portion of the PLEP-B section[13].  No rejections were made to PLEP-A or the Non-Participation Justification sections.  (Hearing Request; DESE Motion; Quincy Motion).
22. On January 30, 2024, Student passed the Math MCAS exam.  As a result, Student has now passed all MCAS exams needed to earn a high school diploma.  (DESE Motion; Quincy Motion).
23. Shortly after the filing of the Hearing Request, Student was transferred to the Plymouth CHC, but has since returned to the Norfolk CHC.  Plymouth CHC and Norfolk CHC have different procedures and rules pertaining to access to educational materials.  (DESE Motion; Quincy Motion). 
24. According to the SEIS Manual, any student inmate in a CHC who has not attained a high school diploma, or its equivalent, is “potentially eligible” for special education services and shall be identified by the CHC Education Director as such.  Documentation of this identification shall be maintained subject to review by DESE upon request.  There are 3 “steps” involved in the process between identification to SEIS implementation of special education services.  Step I involves the CHC Education Director’s obtaining consent from the potentially eligible student to proceed with the special education evaluation process.  Thereafter, the CHC Education director “and/or the SEIS Teacher” “shall” interview the potentially eligible student to complete an intake packet that the SEIS Teacher then sends to the administrative liaison at the local education agency (LEA).  From there, Steps II and III are completed by SEIS and the LEA. (Hearing Request).

POSITION OF THE PARTIES

DESE’S POSITION

DESE seeks dismissal of the Systemic Claims and certain of the Individual Claims.  As to the Systemic Claims, DESE, relying on prior BSEA Rulings, argues that the BSEA lacks jurisdiction to consider “systemic failures” on behalf of “similarly situated students” or a “class of students”, as it is only able to hear matters involving individual students.  Also, according to DESE, under M.G.L. c. 127 §48, the Department of Correction, not DESE, is responsible for educating students incarcerated in CHCs.  Finally, DESE contends that the systemic claims should be dismissed for reasons of “judicial and administrative efficiency [in order to] avoid[] duplicative litigation and eliminat[e] the risk of conflicting jurisdiction by the BSEA and the Superior Court” as those claims are simultaneously pending before the BSEA and the Superior Court.  As the BSEA does not share its discrete jurisdictional authority with the Courts, DESE submits that Student’s arguments relating to “concurrent jurisdiction” are without merit.

With respect to the Individual Claims, DESE makes separate arguments in favor of dismissal of the Child Find Claims (Issue 1, above), the FAPE Claims (Issue 2, above) and the LRE Claims (Issue 3, above) and submits that there are no genuine issues of material fact relating to any of these Claims and that dismissal of such Claims is warranted as a matter of law, under both a dismissal and summary judgment standard.  As to the Child Find Claims (Issue 1), DESE contends that it (inclusive of SEIS) had no responsibility to identify Student for special education eligibility prior to his incarceration on February 15, 2022 (notwithstanding that these claims are outside the statute of limitations)[14].  It also argues that it had no “child find” obligations for Student after his incarceration until he agreed to the 22-23 IEP on January 4, 2023, as it holds no responsibility for identifying potentially eligible students in CHCs, and thus, all portions of the Child Find Claim must be dismissed as to DESE.  

As to the FAPE Claims (Issue 2), DESE also contends that it (inclusive of SEIS) is not responsible to evaluate Student, to develop, modify, or update Student’s IEPs or to determine Student’s placement.  Relying solely on the provisions of M.G.L. c. 71B §3, M.G.L. c. 127 §48, and 603 CMR 28.06(9)(a), DESE argues that its responsibility is related to “communicating” with the LEA and CHC to get copies of relevant education records, “implementing” the IEP’s special education program, “liaising” and “facilitating communication” among members of a student’s Team, “sharing information” and “preparing progress notes”[15].  Further, DESE argues that it cannot be liable under the IDEA’s “general supervision” obligations of a state education agency (SEA) for a Student’s failure to receive a FAPE, thus the FAPE Claims should be dismissed as to DESE.  Further, DESE submits that, to the extent the FAPE Claim as to the inadequacy of a general education program is specific to Student, rather than a reformulation of the Systemic Claims, it must be dismissed entirely, as the BSEA does not have jurisdiction to determine general education claims. 

Finally, as to the LRE Claim, DESE contends that it (through SEIS) has provided Student with 1:1 Math services in accordance with the terms of his 23-24 IEP, specifically the “Present Levels of Educational Performance – A” which was attached to the Hearing Request, thus Student’s claim that he should not be educated individually, at least as to DESE, is without merit, and since all material facts relating to this claim, as to DESE, are undisputed, summary judgment should issue in DESE’s favor or this claim should be dismissed as to DESE.

QUINCY’S POSITION

Quincy also seeks dismissal of the Systemic Claims and certain of the Individual Claims.  Specifically, it concurs with DESE that the Systemic Claims are outside the BSEA’s jurisdiction and further contends that all claims pertaining to “the provision of general education services” should be dismissed on jurisdictional grounds as the BSEA cannot “mandate that Quincy provide instruction in general education courses while [Student] is incarcerated”.  Moreover, Quincy argues that it, as the LEA, only has responsibility for the provision of special education to incarcerated students.  It does not have any responsibility to provide Student, or any incarcerated students, with access to a general education curriculum or general education classes or any legal control over the provision of such general education to incarcerated students.  Further, Quincy argues that FAPE only guarantees the right to receive specialized instruction or related services, but that “actual delivery of general education is not part of the FAPE entitlement”.  Quincy also disputes that the BSEA can simultaneously consider issues pending in the Superior Court, contending that for any issues within the jurisdiction of the BSEA, the exhaustion requirement mandates they be considered at the BSEA prior to being filed in the Superior Court, and only claims that are outside the BSEA’s jurisdiction can proceed to be considered at the Superior Court during the pendency of a BSEA proceeding.  Finally, Quincy seeks dismissal of the Child Find Claims against Quincy, prior to February 14, 2022, on statute of limitations grounds, arguing summarily that none of the exceptions to the two-year limitation period applies to this case. 

STUDENT’S POSITION

Student opposes dismissal or summary judgment arguing that the BSEA has jurisdiction over all his claims, including the Systemic Claims, and that genuine issues of material fact exist such that they should not be dismissed, nor should summary judgment be granted at this juncture. 

With respect to his Systemic Claims, Student argues there is no federal or state law or procedural rule applicable to the BSEA that explicitly prohibits the BSEA from adjudicating class or systemic claims, and that while prior BSEA decisions have declined to assert jurisdiction over class claims, they are not binding on the Hearing Officer in the instant matter.  Further, Student submits that since the issues relate to a DESE “policy that effects hundreds of students and systematically violates their rights under special education law, class relief is a more efficient and practical means of addressing such claims than many individual complaints”, particularly given the BSEA’s expertise in adjudicating special education claims.  Additionally, Student contends that he does not need to withdraw his systemic claims as the BSEA could maintain jurisdiction concurrently with the Superior Court over them.  Student argues that the doctrine of “primary jurisdiction” provides Massachusetts Courts with discretion to retain jurisdiction and proceed concurrently or instead dismiss or stay the pending court action, and the same discretion should apply to the BSEA.  According to Student, the BSEA has primary jurisdiction over “claims relating to the provision of special education, even when those claims are concurrently before another court”.  Student also cites to federal court decisions unrelated to special education, that explicitly state that “administrative agencies are not divested of jurisdiction because there’s a concurrent, overlapping case in Federal Court.”

As to his individual claims, for which BSEA jurisdiction is not disputed, Student argues that DESE, as the SEA, can be held responsible for all such claims, as it has general supervision and direct responsibility under the IDEA and M.G.L. c. 71B, specifically M.G.L. c. 71B § 11A, to ensure all eligible students receive a FAPE in the LRE, including students held in adult jails.  According to Student, DESE is responsible for all aspects of his special education since his incarceration in the CHC, including “child find”, and DESE specifically violated his right to a FAPE when it failed to provide Student with the two hours of Math services per week that it was responsible to provide, from January 3[16], 2023 to May 24, 2023.  Further, Student contends that the BSEA has jurisdiction under 603 CMR 28.08(3) to order DESE to provide Student with services, including compensatory services, for all of its FAPE violations. 

As to his Child Find Claim prior to February 14, 2022, while Student concedes DESE had no such responsibility, he argues that Quincy should not be dismissed as an exception to the two-year statute of limitations established in 34 CFR 300.511(f) exists, that is, Quincy’s failure to provide Student or his family with any notice of procedural safeguards when Student was transferred to the GOALS “substantially separate special education program” without first having been evaluated for eligibility for special education services.

With respect to the FAPE Claims regarding failure to provide Student with a general education program that meets state standards, Student submits that the BSEA has jurisdiction over this issue as the claim is part of an overall FAPE violation claim, and “FAPE requires the provision of a general education curriculum that meets state standards.” Student also submits that, despite being incarcerated, he is entitled to a FAPE and that a FAPE involves more than a right to the services on his service delivery grid.  It also entitles him to receive access to an appropriate secondary school curriculum for a full school day, in accordance with his IEP (emphasis in original).  Student contends that the definition of FAPE in the IDEA mandates the provision of an appropriate secondary school curriculum that meets state standards in accordance with an IEP that must be designed for a full school day, unless otherwise specified therein.  The Massachusetts educational standards for secondary schools include both state curriculum guidelines and time on learning requirements.  Moreover, as neither the 22-23 IEP nor the 23-24 IEP calls for Student to receive a longer or shorter school day or school year, then, under the IDEA, and the state special education regulations, Student must be educated in accordance with his IEP throughout the same school day and school year as students who are not eligible for special education.  Additionally, genuine issues of material fact exist for this Claim that warrant denial of dismissal now. 

Finally, Student submits that his LRE claims similarly should not be dismissed.  Student contends that OSERS has confirmed that LRE rights apply to students in correctional facilities, except for those students who are “convicted as an adult under state law and incarcerated in an adult prison” and for whom there is a “demonstrated bona fide security or compelling penological interest that cannot otherwise be accommodated”.  This exception does not apply to Student[17], however he has never received any education with non-disabled peers and all his special education services have been provided solely on a 1:1 basis.  DESE, through SEIS, has been aware of this situation but has not addressed it.

LEGAL STANDARDS

1. Legal Standard for a Motion to Dismiss.

Rule XVI(A) and (B) of the Hearing Rules for Special Education Appeals and 801 CMR 1.01(7)(g)(3), allows a hearing officer to dismiss 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[18].  To survive a motion to dismiss, there must exist “factual ‘allegations plausibly suggesting (not merely consistent with)’ an entitlement to relief…”[19].  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”[20].  “Factual allegations must be enough to raise a right to relief above the speculative level… [based] on the assumption that all the allegations in the [hearing request] (even if doubtful in fact) ….”[21]. 

Motions to Dismiss should be approached with caution, regardless of the representation status of a party[22].  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[23].  However, “[w]hile …. detailed factual allegations” are not necessary, “… a [Student’s] obligation to provide the ‘grounds’ of [] ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do”[24].

2. Legal Standard for a Motion for Summary Judgment.

801 CMR 1.01(7)(h) allows summary decision to be granted when there is “no genuine issue of fact relating to all or part of a claim or defense and [the moving party] is entitled to prevail as a matter of law”[25].  FRCP and MRCP (56) provides that summary judgment may be granted only if the “pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there are no genuine issues as to any material fact and that the moving party is entitled to judgment as a matter of law”.  A genuine dispute as to a material fact exists if it involves a dispute of a fact that “carries with it the potential to affect the outcome of the suit” and “a reasonable [factfinder] could resolve the point in the favor of the non-moving party”[26].  The moving party bears the burden of proof, and all evidence and inferences must be viewed in the light most favorable to the party opposing summary judgment[27]. 

To successfully challenge a motion for summary judgment, the opposing party “must set forth specific facts showing that there is a genuine issue for trial”[28].  That is, the adverse party must show that there is “sufficient evidence” that could be found in its favor that would allow the fact finder to decide for it at a hearing on the merits[29].  To be “sufficient”, the evidence presented by the non-moving party “must have substance in the sense that it [demonstrates] differing versions of the truth which a factfinder must resolve at an ensuing trial”[30].  The non-moving party’s evidence will not suffice if it is comprised merely of “conclusory allegations, improbable inferences, and unsupported speculation[31].”  “At the summary judgment stage the [hearing officer’s] function is not [her]self to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial”[32].

3. Jurisdiction of BSEA over Incarcerated Students.

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”[33].  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”.

According to M.G.L. c. 71B §11A, “The department of education shall provide special education to school aged children with a disability who are incarcerated in county houses of correction” (emphasis added).  Both “special education” and “school age child with a disability” are defined in M.G.L. c. 71B §1.  “School age child with a disability” is defined, in relevant part, as,

“a school age child in a public or non-public school setting who, because of a disability consisting of a developmental delay or any intellectual, sensory, neurological, emotional, communication, physical, specific learning or health impairment or combination thereof, is unable to  progress effectively in regular education and requires special education services, including a school age child who requires only a related service or related services if said service or services are required to ensure access of the child with a disability to the general education curriculum….  The use of the word disability in this section shall not be used to provide a basis for labeling or stigmatizing the child or defining the needs of the child and shall in no way limit the services, programs, and integration opportunities provided to such child”[34] (emphasis added). 

“Special education”, in turn, is defined, in relevant part, as the “educational programs and assignments including, special classes and programs or services designed to develop the educational potential of children with disabilities …”[35].  Thus, in Massachusetts DESE has statutory responsibility for providing the requisite programs and assignments, inclusive of special classes, programs and services, that are designed to develop the educational potential of any person incarcerated in CHCs, through 21 years of age who has not attained a high school diploma or its equivalent, and who, due to a disability, is unable to progress effectively in the school program, and requires special education services, including only related services, to “ensure access of the child with a disability to the general education curriculum”.

To assist in meeting its mandated responsibility, DESE has promulgated regulations, specifically 603 CMR 28.06(9) addressing the provision of educational services in institutional settings.  According to these regulations, DESE,

“shall provide certain special education services to eligible students in certain facilities operated by or under contract with the … County Houses of Corrections ….  [DESE] shall retain the discretion to determine based upon resources, the type and amount of special education and related services that it provides in such facilities”[36] (emphasis added).

This regulation also notes that “school districts are not relieved of their obligations to students in [CHCs]” and that the,

“responsible school district shall coordinate with [DESE] and ensure that the student receives an evaluation, an annual review, and special education services as identified by the Team at a Team meeting convened by the responsible school district.  The Department shall participate in Team meetings for any student receiving special education services in an institutional setting.  To the extent that special education services are provided by the Department in such facilities, the Department will make every effort to provide services consistent with the student’s IEP and available resources”[37] (emphasis added).

Incarcerated students in Massachusetts adult prisons maintain a right to FAPE under the IDEA as well[38].  Certain exceptions to the IDEA’s applicability to certain eligible students in adult correctional facilities exist but do not apply here[39]. 

4. 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[40].  The only exceptions to this two-year limitation period are if a parent or student 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 [or student] that was required … to be provided …”[41]. 

5. Liability of the SEA

As I have previously ruled, in an unrelated matter, generally, there are no private rights of action available against DESE, as the SEA, for violations of its general supervisory responsibilities under Section 1412 of the IDEA[42].  In other words, the SEA’s general supervisory authority under Section 1412 of the IDEA does not, on its own, provide justification for DESE to be included in cases involving individual FAPE claims against an LEA, where no other specific special education related action by the SEA is implicated.  However, this does not mean that the SEA can never be a proper party to a due process proceeding[43].  Where specific claims are made as to the failure of the SEA to meet its IDEA-based responsibilities, particularly in situations where it has direct responsibility under other statutory or regulatory provisions of state or federal special education law, the SEA has been held to be a proper party to special education due process proceedings[44]. 

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

APPLICATION OF LEGAL STANDARDS

After reviewing the Hearing Request and the pleadings associated with the Motions in the light most favorable to Student, as I am required to do, I find that Student’s Child Find Claim as to DESE prior to February 15, 2022, his LRE Claim with regard to receipt of his math and counseling services on a 1:1 basis since January 17, 2024, and his Systemic Claims must be dismissed.  However, I find that his Child Find Claims as to DESE since February 15, 2022, his Child Find Claim as to Quincy since February 2020, all his FAPE Claims and LRE Claims (other than with regard to receipt of special education math and counseling services on a 1:1 basis since January 17, 2024), survive.  My reasoning follows.

1. Individual Claims

1. Issue 1 – Child Find Claims

Both DESE and Quincy seek dismissal of the Child Find Claim prior to February 2022.  DESE argues that it had no child find responsibility prior to Student’s incarceration in the CHC on February 15, 2022.  Student agrees DESE holds no child find responsibility for Student prior to his incarceration and thus, DESE’s request to dismiss the Child Find Claim as to DESE prior to February 15, 2022, is ALLOWED.

Quincy argues that the Child Find Claim must be dismissed prior to February 14, 2022, as being beyond the two-year statutory limitation period.  Student disputes dismissal as to Quincy on this basis, arguing that an exception to the two year statutory limitation period applies.  Student’s Hearing Request contains allegations that he was transferred and enrolled into the GOALS substantially separate special education program in Quincy in February 2020, without ever having been referred or evaluated for special education services or identified as eligible for special education services.  Neither Student nor Parent was provided with any notification of Student’s potential eligibility for special education services at that time, or their procedural safeguards under the IDEA.  Other than making a general conclusory statement that none of the exceptions to the two year statutory limitations period applies, Quincy does not otherwise address these allegations in the Hearing Request.  As Student’s allegations are sufficient to “plausibly suggest” that the second exception to the two year statute of limitations applies here (i.e., the [district]’s withholding of information from the parent [or student] that was required … to be provided …”[45]), and as Quincy has not asserted any specific allegations in opposition to Student’s allegations, Quincy’s request to dismiss the Child Find Claim prior to February 14, 2022, is DENIED.

DESE also seeks dismissal of the Child Find Claim after February 15, 2022, arguing that it held no child find responsibilities to Student until it received notification of his eligibility for special education services on January 4, 2023.  However, a review of the documents and allegations submitted by the parties to date, in the light most favorable to Student, as I am required to do, indicates SEIS had actual involvement in identifying Student as potentially eligible for special education and, also, potential obligation[46], prior to January 2023[47].   According to Step I of the SEIS Manual, SEIS has immediate obligations and responsibilities that arise as soon as a CHC Education Director has identified a student as potentially eligible for special education services and, thus, a genuine issue of material fact exists with regard to whether or not Student’s process of receiving special education services at the CHC was consistent with the Manual, and when SEIS was or should have been first aware of Student’s potential eligibility.  Given this, DESE’s request to dismiss the Child Find Claims from February 15, 2022, to January 4, 2023, as to DESE, is DENIED.   

2. Issue 2– FAPE Claims

DESE contends that it is not responsible for developing, modifying or updating Student’s IEP or determining placement.  DESE relies on several statutory and regulatory provisions that require entities other than DESE to be responsible for special education of students, specifically M.G.L. c. 71B §3, holding school committees in LEA responsible for the special education program of all eligible students who reside therein, 603 CMR 28.09(9), involving students in institutional settings, and M.G.L. c. 127 §48 relating to the education of incarcerated students.  Student disagrees arguing that both the general supervisory responsibility of DESE under the IDEA and the provisions of M.G.L. c. 71B §11A impose specific obligations on DESE beyond the statutes and regulations it relies upon. 

As noted above, according to M.G.L. c. 71B §11A, DESE “shall provide special education” to eligible students incarcerated in CHCs (emphasis added).  This language is clear and unequivocal and creates a mandatory obligation in Massachusetts on DESE to “provide” eligible students incarcerated in CHCs with special education.  This statutory provision is also beyond the general supervision obligations DESE has under the IDEA.  The statute is specific to the population of CHC incarcerated students in the Commonwealth and must be considered in analyzing any FAPE challenges brought by such a student[48].  I agree that the obligation to “provide” a “special education program” to students outside institutional settings falls to the LEA pursuant to M.G.L. c. 71B §3, the obligation to “establish and maintain” “education programs” for students in the custody of the Department of Corrections for over 6 months falls to the Department of Corrections[49] under M.G.L. c. 127 §48, and 603 CMR 28.09(9) imposes obligations on an LEA for the “provision of special education in accordance with state and federal law as to students in public schools” (emphasis added).  However, none of these provisions relieves DESE of its obligations under M.G.L. c. 71B §11A[50].  Further, the allegations in the Hearing Request allege specific violations pertaining to special education services DESE was responsible for providing to Student under both state and federal special education laws[51]. 

I also agree with Student that it is likely that at a hearing on the merits additional material facts could be elicited that would provide relevant and critical information related to DESE’s actions and inactions in accordance with its legal special education responsibilities to Student[52].  Such material facts include, but are not limited to, SEIS’s involvement with the development of the IEP at all TEAM meetings, services that were or were not provided by SEIS, the reason for non-provision of services, and the progress Student made or did not make with regard to those services.  Thus, while I may ultimately conclude, after a hearing on the merits, that DESE has met its FAPE obligations to Student, particularly with regard to the development of his IEPs (Issue 2(a), above), the record is not sufficiently developed at this time to so determine, thus dismissal of the FAPE Claims as to DESE currently, is not warranted

Finally, I turn to DESE and Quincy’s joint argument that Issue 2(b) of Student’s FAPE claim should be dismissed because neither entity is responsible for providing general education services to Student, or any incarcerated students, and issues concerning general education services are outside the BSEA’s jurisdiction.  I agree with Student, however, that this Issue is part of a broader FAPE violation claim, and to that extent, I find it within the jurisdiction of the BSEA.  Although Student is incarcerated, he maintains a right to a FAPE.  A FAPE involves more than just receipt of specialized instruction and related services, as Quincy argues, though.  FAPE grants all eligible students, including incarcerated students, the right to receive an appropriate curriculum that meets state standards.  At this juncture, it is not yet clear what type of a curriculum or program is “appropriate” for Student or even what has been provided, as the accounts of Student’s Acellus access and schedule differ in the Hearing Request and the Motions.  However, after a hearing on the merits, I may determine that for Student, a FAPE includes but is not limited to access to the secondary school general education curriculum for more hours per week than he has been offered[53].  As such, DESE and Quincy’s request to dismiss Student’s allegations that he has been denied a FAPE based upon not being provided with a general education program that meets state standards should not be dismissed and are not appropriate for resolution by summary judgment.  For these reasons, DESE’s and Quincy’s Motions with respect to Student’s FAPE Claims are DENIED. 

3. Issue 3 – LRE Claim

Student challenges the provision of all his educational services on a 1:1 basis, asserting it is a violation of his right to be educated in the least restrictive environment.  DESE contends this claim must be dismissed, as it provided Student services in a 1:1 setting in accordance with his accepted IEPs.  At this juncture, only the 23-24 IEP has been provided for my review.  Student partially rejected this IEP on January 17, 2024, accepting all provisions related to the “environment” or setting in which he would be receiving services.  The setting provisions in that IEP clearly state that Student is to receive both his math and counseling services on a 1:1 basis.  Student rejected the 23-24 IEP’s failure to provide him with additional services, and if I were to find such additional services are necessary to receive a FAPE, it is unclear what type of a setting he would need for these services.  Thus, viewing the facts in the light most favorable to Student, I conclude that since January 17, 2024, Student has been appropriately receiving his math and counseling services on a 1:1 basis, and therefore any challenge as to setting with regard to the provision of these special education and related services must be dismissed.  As such, DESE’s request to dismiss Student’s LRE Claim is ALLOWED in part,specifically as to provision of math and counseling special education services from and after January 17, 2024, but DENIED in part, as to (a) any other educational services Student may have been entitled to receive after January 17, 2024; and (b) the 1:1 setting between January 4, 2023, and January 17, 2024[54].      

2. Systemic Claims

Student contends that in order for the BSEA’s authority over class actions to be prohibited, it must be explicitly excluded.  He also argues that as prior BSEA decisions are not precedential and hence not binding from hearing officer to hearing officer, the existence of the same is not a basis for dismissal of the systemic claims.  Finally, Student submits that given the recognized expertise of the BSEA to adjudicate special education matters, it should be able to review challenges to the “system in place and related policies”.  

While I agree that decisions of other hearing officers are not binding on me, Student cites to no legal authority to support his contention regarding the requirement to explicitly exclude BSEA authority over systemic claims[55].  Further his arguments fail 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[56], 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 concluding the BSEA lacks jurisdiction over systemic or class claims, and I find their reasoning to be both sound and appropriate[57].   As Hearing Officer Oliver aptly explained:

“The BSEA is not a[n agency] of general jurisdiction….  Throughout M.G.L. c. 71 B, 20 U.S.C Section 1400 et seq., 29 U.S.C. Section 794 and the regulations promulgated pursuant to these statutes, the repeated references are to a child with a disability, the child, the student, all in the singular, individual form.  The BSEA’s jurisdiction is, therefore, limited to resolving disputes and providing relief for individual students.  Further, the BSEA Hearing Rules for Special Education Appeals, make no provision for class actions.

Given the above statutory and regulatory scheme, the charge of the BSEA Hearing Officer is to determine the individual student’s specific special education needs, and to determine whether or not the school district can appropriately address those individual needs.  Unlike the federal courts (see Rule 23 of the Federal Rules of Civil Procedure), the BSEA has no has no statute, regulation, or rule providing for class action claims.  The BSEA has never engaged in class-wide fact finding and does not have the experience, expertise, or institutional capacity to provide administrative fact finding on class action claims which could be of assistance to the federal court in any potential, subsequent class action litigation”[58].

Thus, DESE’s and Quincy’s request to dismiss the Systemic Claims are ALLOWED[59].

ORDER

The Motions to Dismiss are ALLOWED in part and DENIED, in part.  As such, only the following issues shall proceed to Hearing in this matter on September 9, 10 and 11, 2024 in accordance with the provisions of my April 26, 2024, Ruling:

1. Whether Quincy failed to identify Student as a student with a disability in violation of their “child find” obligations from February 2020, through January 4, 2023;
2. Whether DESE failed to identify Student as a student with a disability in violation of their “child find” obligations from February 15, 2022, through January 4, 2023;
3. Whether DESE and Quincy denied Student a free, appropriate public education (“FAPE”) by proposing IEPs dated 12/12/22-12/12/23 and 12/6/23 – 12/5/24 that were not appropriately designed to provide a FAPE;
4. Whether DESE and Quincy denied Student a FAPE by failing to provide him with a general education program that meets state standards and allows him to progress from grade to grade since January 4, 2023;
5. Whether Student requires additional special education services from DESE and Quincy in the areas of academic achievement and transition to receive a FAPE;
6. Whether DESE and Quincy failed to educate Student in the least restrictive environment (“LRE”) by educating him in only a 1:1 or independent setting since January 4, 2023, except with respect to his math and counseling services since January 17, 2024; and
7. What if any relief is owed to Student by DESE and Quincy. 

All other claims are hereby DISMISSED. 

By the Hearing Officer,

/s/ Marguerite M. Mitchell

Marguerite M. Mitchell

Date: July 10, 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 (1^st 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.

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[1]   Attachment A is a February 14, 2024 Affidavit of Attorney Timothy Sindelar.  The affidavit relates to information he was provided from Kate Firling, a School District Coordinator for the Collaborative for Educational Services (CES), at a Team meeting he attended on January 18, 2024, at the Berkshire County House of Correction (CHC).  This Team meeting was for a client of his other than Student; Attachment B is a September 19, 2022 letter of Raymond E. Papile, former Coordinator of Quincy’s GOALS Program, on behalf of Student; Attachment C is Part I through Part III of DESE’s Special Education in Institutional Settings (SEIS) CHC Practice Manual (SEIS Manual); and Attachment D is the 23-24 IEP and its N1 Form.

[2]   This statement of issues is taken from the section of the Hearing Request entitled “Issues in Dispute”.  To the extent Student believes there are other issues contained in the Hearing Request that are not set forth above, he must seek to amend his Hearing Request to include them.

[3]   In subsequent Memoranda, discussed infra, Student acknowledges that he does “not contest DESE’s assertion that they cannot be held liable for the child find violation from February of 2020 to February of 2022.  DESE’s potential liability for the child find violation begins when [Student] was incarcerated in February of 2022 due to the failure of DESE’s policies and procedures, as well as its oversight”.

[4]   Attachment A is a January 3, 2023 Memo from Teresa Poteat, SEIS’ Administrator to Donna Cunningham, Quincy Team Administrator, regarding “Potential Eligibility for Special Education Services”; Attachment B is a list of educational actions between December 20, 2022 and February 28, 2024; Attachment C is Student’s June 26, 2023, December 4, 2023 and February 15, 2024 Progress Reports; Attachment D is the SEIS September 14, 2023 Team Meeting Notes and SEIS’ October 17, 2023 Request to Quincy for an Annual/Three-year Meeting; and Attachment E is the SEIS December 6, 2023 Team Meeting Notes. 

[5]   In a supplemental Memorandum, discussed infra, DESE clarified that it concedes that the requests for compensatory services for some of the FAPE Claims remain viable and should not be dismissed.

[6]   This argument appears to pertain to Issue 2(b) identified above and will be so analyzed for this purpose.

[7]   This date was agreed to by the Parties.

[8]   During a Conference Call on April 24, 2024, the Parties were advised that given DESE’s submission of additional documents in support of its Motion, and Student’s reliance thereon in his Oppositions, the Motions would be considered under both a dismissal and summary judgment standard, and the Parties would have the ability to file supplemental memoranda of law to address the summary judgment standard.  Additionally, the Parties discussed the Notice and the procedural concern with the BSEA proceeding to consider the systemic claims on substantive jurisdictional grounds in light of the simultaneously pending Class Action Complaint involving the same systemic claims, and the Parties agreed to file supplemental memoranda of law on this procedural question.

[9]   DESE’s Supplemental Memo does not address Issue 2(c) in any way – either specifically or generally.  It was not addressed with any specificity in DESE’s Motion however, it was included in DESE’s overall request that all claims other than those involving compensatory services for missed services between January 3 and May 25, 2023, be dismissed.

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

[11]   Neither Party has submitted a copy of this IEP.  Any information about this IEP is take solely from the factual allegations contained in the Hearing Request, DESE’s Motion, and Quincy’s Motion.

[12]   It appears from the documents that the IEP Amendment issued on September 14, 2023, included the counseling service but no counseling goal. 

[13]    The revisions sought were not related to the 1:1 setting reference.

[14]   As discussed, infra, Student has conceded that DESE does not have any child find responsibilities prior to Student’s incarceration in his opposition to the Motions.

[15]   M.G.L. c. 71 §3 requires the school committee of every town to identify all students with disabilities residing therein, “… propose a special education program to meet those needs, provide or arrange for the provision of such special education program, maintain a record of such identification, diagnosis, proposal and program actually provided and make such reports as the department may require (emphasis added).”  M.G.L. c. 127 §48 requires the Commissioner of the Department of Corrections to “establish and maintain education, training and employment programs for persons committed to the custody of the department” and that for persons committed to the custody of the Department of Corrections for over 6 months who have not received their high school diploma to ensure that there is “at least 1 educational program leading to the award of a high school equivalency certificate is available”.  It does not mention the provision of special education programs or services.  Finally, 603 CMR 28.09(9)(a) addresses the provision of special education services to eligible students in institutional settings, and notes that while admission and discharge decisions remain with the institutional agency, the student’s LEA remains responsible for the “referral, evaluation, and the provision of special education in accordance with state and federal law as to students in public schools”.

[16]   The Parties interchangeably refer to this date as January 3, 2023, and January 4, 2023, and for purposes of this Ruling I consider both dates to refer to the same timeframe. 

[17]   Student has not yet been so convicted, and he is currently only detained in the CHC pending adjudication of his charges. 

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

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

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

[21]   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).

[22]   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.

[23]   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.

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

[25]   801 CMR 1.01(7)(h).  As with motions to dismiss, hearing officers are guided by Rule 56 of the FRCP and MRCP in deciding motions for summary judgment or decision.

[26]   French v. Merrill, 15 F.4th 116, 123 (1st Cir. 2021); see Maldanado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 581 (1st Cir. 1994).

[27]   Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).

[28]   Id. (quoting FRCP 56(e)).

[29]   Mack v. Great Atl. & Pac. Tea Co., 871 F.2d 179, 181 (1st Cir. 1989) (quoting Anderson, 477 US at 249-50).

[30]   Mack, 871 F.2d at 181 (citations omitted).

[31]   Anderson, 477 U.S. at 252.

[32]   Id. at 249.

[33]   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”).

[34]   M.G.L. c. 71B §1; “Regular education” is also defined in this statute as “the school program and pupil assignment which normally leads to college preparatory or technical education or to a career.”; “School age child” is also defined in this statute as any person of ages three through twenty-one who has not attained a high school diploma or its equivalent”.

[35]   Id.

[36]   603 CMR 28.06(9).

[37]   603 CMR 28.06(9) (a) and (d).

[38]   34 CFR 300.2(b)(1)(iv) (the obligations under the IDEA apply to “all political subdivisions of the State involved in the education of children with disabilities, including:  state and local juvenile and adult correctional facilities”);  See Letter to Yudien, (OSERS, August 19, 2003) (States must make FAPE available to all students with disabilities in adult prisons who are within the eligible age range under state law and “States and local educational agencies must include in its child find system, those incarcerated youth who would be eligible to receive a FAPE”);  Letter to Colleague (OSERS, December 5, 2014) (concluding that for students with disabilities in correctional facilities, unless specifically exempted, all IDEA Part B requirements apply; “every agency at any level of government [including the SEA] that is involved in the provision of special education and related services to [such] students in correctional facilities must ensure the provision of FAPE [including compliance with child find, evaluation, LRE, due process and discipline requirements of the IDEA], even if other agencies share that responsibility”; and States must have interagency agreements that make it clear which agency or agencies are responsible for providing and paying for such special education and related services needed to ensure a FAPE). 

[39]   34 CFR 300.102(a)(2) (providing that the obligations to provide a FAPE do not apply to children ages 18 through 21 if there is a State law that otherwise does not require special education to such children who are also incarcerated in an adult correctional facility and who prior to their incarceration, when last attending school, were not actually identified as a child with a disability and did not have an IEP); 34 CFR 300.324(d) (providing that the IDEA requirements of participation in statewide and district-wide assessments do not apply to children with disabilities convicted as adults under State law and incarcerated in adult prison.  Neither do the IDEA requirements to be provided with transition planning or transition services apply for such children 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 such a child, 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); see Letter to Duncan, (OSERS, January 29, 2019) (for youth convicted as adults and incarcerated in adult prison, if there is a “bona fide security or compelling penological interest that cannot be accommodated so as to allow the child to receive the special education and related services necessary to enable the child to be awarded a high school diploma, the child’s IEP may be modified … to be awarded the GED credential”). 

[40]   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.

[41]   20 USC 1415(f)(3)(D); 34 CFR 300.511(f).

[42]   In Re: Springfield Pub. Schools, Springfield Sch. Comm. (Including Melinda Phelps), DESE, and Murphy, Hesse, Toomey & Lehane, BSEA #2309351, 29 MSER 154 (Ruling, Mitchell, 2023); see Larach-Cohen v. Porter, No. 19 CV 7623-LTS-SDA, 2021 WL 1203686, at *3 (S.D.N.Y.  Mar. 30, 2021); Y.D. v. N.Y. City Dep’t of Educ., No. 14 CV 1137-LTS, 2016 WL 698139, at *5 (S.D.N.Y. Feb. 9, 2016) (with the exception of allegations of systemic violations brought before the Courts, SEAs and its employees are not proper parties to IDEA actions in federal courts for alleged violations of their “general” supervisory responsibilities as such responsibilities are general in nature and do not involve a “’specific requirement’ with respect to a state educational agency’s supervisory responsibilities”); see Z.Q. v. New York City Dep’t of Educ., No. 1:20-cv-09866 (ALC), 2024 WL 1333144, at *5 (S.D.N.Y. Mar. 28, 2024)  (dismissing the SEA as a party, reasoning that “absent any specific allegations of the [SEA]’s role in purported wrongdoing, Plaintiffs have not shown that ‘the State was a direct contributor—even if not the only contributor—to Plaintiff’s injury’) (quoting Engwiller v. Pine Plains Cent. Sch. Dist., 110 F.Supp. 2d 236, 247 (S.D.N.Y 2000) (citations omitted); Coningsby v. Oregon Dep’t of Educ., No. 3:16-cv-00627-HZ, 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)).

[43]   A.A. ex rel. J.A. v. Philips, 386 F.3d 455, 459 (2d Cir. 2004) (SEA was a proper party to class actions claims brought against it that alleged violations of the SEA’s enforcement and monitoring obligations with respect to a school district found by the SEA to have violated the IDEA); J.F. v. Adams, 1:21-cv-11150 (ALC), 2024 WL 1348524, at *7 (S.D.N.Y. Mar. 29, 2024) (SEA was a proper party to a proceeding that alleged specific allegations by the SEA to supervise, oversee and guarantee due process rights and FAPE as well as improper delegation of its authority over due process proceedings, reasoning that “Plaintiffs have shown ‘the State was a direct contributor—even if not the only contributor—to Plaintiff’s injury[.]’”) quoting Engwiller, 110 F. Supp. 2d at 246 (issuing declaratory judgment against the NY State SEA on a claim that its procedural safeguards established under §1415 of the IDEA were “… inadequate in Plaintiff’s case for the State to meet its obligation under the IDEA to make certain that an IHO decision is issued in a timely fashion” as Plaintiff had not received a decision on a hearing request filed almost 2 years earlier (emphasis in original)).

[44]   Id.; see 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”).

[45]   20 USC 1415(f)(3)(D); 34 CFR 300.511(f).

[46]   According to the Hearing Request, despite being initially incarcerated in February 2022, Student did not receive any educational services until November 2022 when he began to access Acellus.  A Team meeting was held on December 6, 2022, at which Student was found eligible for special education services.  It is unclear if SEIS participated in this Team meeting, although it acknowledges its obligation to participate in all Team meetings involving incarcerated students in CHCs that will or do receive special education services.  Additionally, according to documents attached to the DESE Motion, Student’s SEIS information was emailed to the CHC Education Director on December 20, 2022, Student signed the SEIS Consent form on December 22, 2022, and the SEIS intake documents were completed on December 28, 2022.

[47]   See Letter to Yudien, (OSERS, August 19, 2003).

[48]   Compare M.G.L. c. 71B §12 (establishing the responsibility for special education services to eligible students in institutional settings other than CHCs, imposing different obligations on DESE than §11A, and requiring that “[DESE] shall establish and maintain a school department for school-age children in each institution under the control of the departments of mental health, developmental services, public health and youth services which provides support and care for resident children with a disability, acting jointly with the department which has control over the particular institution ….”).

[49]   As student has yet to be adjudicated on his charges, he does not meet this definition.

[50]   Although DESE has promulgated regulations and has developed procedures, namely, 603 CMR 28.06(9) and the SEIS Manual, that identify other agencies and entities in the Commonwealth to be responsible over certain specific special education processes and obligations, these regulations and manuals do not replace or excuse the overall mandatory obligation DESE has under M.G.L. c. 71B §11A to “provide special education” to Students in CHCs. 

[51]   Notwithstanding the provisions of M.G.L. c. 71B §11A, it is also appropriate to include DESE as a party in this matter, based upon its involvement (through SEIS) in Student’s special education program, and its general supervisory obligations over students who receive special education in institutional settings.  See A.A. ex rel. J.A., 386 F.3d at 459; J.F., 2024 WL 1348524 at *7 quoting Engwiller, 110 F. Supp. 2d at 246; R.V., 220 F. Supp. 3d at 594; compare Springfield Public Schools, 29 MSER 154 (dismissing DESE as a party on the grounds that it cannot be liable based upon its general supervisory responsibilities in a FAPE dispute between a Student and his LEA, or for claims that relate to general educational benefits that were available regardless of disability status); Letter to Colleague (OSERS, December 5, 2014). (DESE, as the SEA, maintains “ultimate responsibility” to ensure a FAPE is provided, under the IDEA, to incarcerated students in CHCs “even if other agencies share that responsibility”).

[52]   French, 15 F.4th at 123; see Anderson, 477 U.S.at 249; Maldanado-Denis, 23 F.3d at 581.

[53]   M.G.L. c. 71B §1, definition of “school age child with a disability”; M.G.L. c. 71B §11A mandating the provision of special education to all school age children with a disability incarcerated in CHCs.  Moreover, as Student notes, the 23-24 IEP does not indicate Student should receive a shorter day or shorter year, rather the “Schedule Modification” section of this IEP checks the box for “no” to both these options.

[54] This is the time period between acceptance of the yet to be provided 22-23 IEP (which was thereafter partially rejected on June 30, 2024), and the partial acceptance of the 23-24 IEP.  Once material about this IEP is received at a hearing on the merits, I may ultimately conclude that the LRE claim as to any accepted and implemented services in the 22-23 IEP also cannot succeed for the reasons noted in this Ruling.

[55]   Student’s only citations are to prior BSEA Rulings that have concluded the BSEA does not have jurisdiction over class actions and those in support of the arguments that prior BSEA decisions are non-precedential and that the BSEA’s expertise to adjudicate special education matters is well recognized by the courts. 

[56]   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.

[57]   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).

[58]   Holyoke, 24 MSER 20.

[59]   I agree with DESE that the simultaneous pursuit of claims can create a risk of conflicting determinations and wasting of judicial and administrative resources.  Contrary to Student’s argument, for claims over which the BSEA has original jurisdiction, or those that require administrative exhaustion, the court does not have concurrent jurisdiction with the BSEA.  Pursuant to the IDEA, issues within the BSEA’s jurisdiction must be filed with the BSEA prior to (as opposed to simultaneously) being filed with the Court.  20 USC 1415(l).  However, as not all educational issues fall within the BSEA’s jurisdiction, those matters outside its jurisdiction can, upon dismissal for jurisdictional grounds, or separately without first being filed with the BSEA, be pursued in a court of law.  See Perez v. Sturgis Public Schools, 598 U.S. 142, 147-48 (2023) (“The statute’s administrative exhaustion requirement applies only to suits that seek relief . . . also available under IDEA”) (internal quotation marks and citation omitted).