COMMONWEALTH OF MASSACHUSETTS
DIVISION OF ADMINISTRATIVE LAW APPEALS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Student v. Bourne Public Schools, Melmark New England, EOHHS & DMH
BSEA# 26-05571
RULING ON MELMARK NEW ENGLAND’S MOTION TO DISMISS, OR IN THE ALTERNATIVE, MOTION TO BIFURCATE
On November 19, 2025, Guardians filed an Accelerated Hearing Request against the parties named above, seeking the following relief:
1. A finding that Student’s IEP dated 6/14/2024-6/13/2025 and residential placement continues to be Student’s “Stay-Put” IEP and placement, [and] that Student requires continued placement in an appropriate residential educational facility, in order to access her education, make meaningful and effective progress, and maintain safety;
2. An order that Bourne Public Schools (Bourne) immediately locate an appropriate successor residential educational program for Student;
3. A finding that Bourne violated [f]ederal and [s]tate [s]pecial [e]ducation [r]egulations relative to “Stay-Put” that have resulted in substantive harm to Student;
4. A finding that Bourne violated [f]ederal and [s]tate [s]pecial [e]ducation [l]aw and [r]egulations relative to the development of an IEP, and failed to evaluate [Student] within timelines and has denied Student FAPE;
5. A finding that an appropriate interim residential educational program for Student, while Bourne locates an appropriate successor residential educational [placement], includes a hotel or apartment in Bourne, staffed with 3:1, 24/7 therapeutic support, and interim educational services at Bourne High School;
6. An order requiring Bourne to provide compensatory educational services commensurate with the time Student has been without an appropriate residential educational placement and without educational services, as well as extending Student’s eligibility for special education post 22 from February 2025 to the date a new successor placement is located;
7. A finding that Melmark New England (Melmark) violated [f]ederal and [s]tate [s]pecial [e]ducation [r]egulations relative to “Stay-Put” placement which resulted in procedural and substantive violations [that] caused harm to Student and Guardians;
8. A finding that Bourne’s failure to search for a successor placement post May 2, 2025, evaluate, propose an IEP and preserve the “stay put” placement procedurally and substantively were actions that satisfy the “deliberate indifference” standard for a further claim in federal court for damages;
9. An order that Bourne Public Schools and Melmark New England be responsible for all costs, including attorney’s fees, in connection with bringing this action forward, as well at the action brought in February 2025 relative to BSEA #2508471;
10. An order that the Department of Mental Health and the Executive Office of Health and Human Services assist in development, staffing or sourcing of a program for Student;
11. An order that the Department of Mental Health’s request to bring in Department of Developmental Services is nonsensical and is an attempt to shift the burden to a different state agency;
12. An order [that] both the executive Office of Health and Human Services (EOHHS) and the Department of Mental Health (DMH,) have not acted with regard to any urgency and should create or locate a residential program for Student immediately if no school placement is able to be sourced by the District; and
13. Such other further relief as may be just.
On December 11, 2025, Melmark New England (Melmark) filed Melmark New England’s Motion To Dismiss, Or In The Alternative, Motion To Bifurcate (the Motion), asserting that Melmark should be dismissed from the Accelerated Hearing Request, because the Petitioners seek no relief against Melmark that falls within the scope of the Accelerated Hearing Request.[1] Nowhere in their Accelerated Hearing Request do Guardians express a desire or prayer to have Student return to Melmark. Rather, they seek placement in an “appropriate interim residential program” in an appropriately staffed “hotel or apartment” until Bourne Public Schools locates a permanent residential placement. Consequently, there is no relief requested against Melmark in the accelerated hearing petition, and the accelerated relief claim against Melmark should be immediately dismissed. Melmark further asserts that none of the remaining Melmark-related prayers/claims qualify for accelerated status and, therefore, at the very least, they should be bifurcated and placed on the regular (non-accelerated) track.
Parents, Bourne Public Schools (Bourne), the Department of Mental Health (DMH), and the Executive Office of Health and Human Services (EOHHS) indicated via email that they did not object to Melmark’s request.
LEGAL STANDARDS:
- Bifurcation of Issues
Pursuant to BSEA Hearing Rule II(D)(3), “[w]hen accelerated status is requested, a Hearing Officer will consider which issues, if any, meet the criteria above, and will schedule only those issues on an accelerated track. The remaining issues, if any, will proceed separately on a non-accelerated track. Whenever possible, both cases will be heard by the same Hearing Officer.”
- Motion to Dismiss
Pursuant to Hearing Rule XVII A and B and 801 CMR 1.01(7)(g)(3)[2], a hearing officer may allow a motion to dismiss if the party requesting the hearing fails to state a claim upon which relief can be granted. These rules are analogous to Rule 12(b)(6) of the Federal Rules of Civil Procedure. As such, hearing officers have generally used the same standards as the courts in deciding motions to dismiss for failure to state a claim. To survive a motion to dismiss, there must exist “factual ‘allegations plausibly suggesting (not merely consistent with)’ an entitlement to relief.”[3] 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.”[4] These “[f]actual allegations must be enough to raise a right to relief above the speculative level.”[5]
APPLICATION OF LEGAL STANDARDS:
- Dismissal of Melmark As Party from Accelerated Claims
Here, taking as true “the allegations of the complaint, as well as such inferences as may be drawn therefrom in the plaintiff’s favor,”[6] I find that because Guardians do not seek Student’s immediate return to Melmark, and Melmark is not a party to Guardians’ request for accelerated relief as outlined supra, Melmark must be dismissed as a party to the accelerated claims.[7]
- Bifurcation of Issues
Pursuant to BSEA Hearing Rule II(D)(3), Claims 1, 2, 5, 10, and part of 12 will proceed on an accelerated track.
Claims 3-4, 6-9, 11, part of 12 (i.e., whether EOHHS and DMH “have not acted with regard to any urgency”), and 13 will proceed on the regular track.
ORDER:
For the reasons articulated below, Melmark’s Motion is ALLOWED in accordance with this Ruling. Melmark is dismissed as a party to the accelerated claims.
The Hearing on the accelerated claims (Claims 1, 2, 5, 10, and part of 12) shall proceed on December 19, 2025. It will take place via a virtual platform. It will begin at 9:30 AM and conclude at 4:30 PM.
All other claims (Claims 3-4, 6-9, 11, part of 12, and 13) will proceed on a regular track.
Of said claims, Melmark is a party to #s 7, 9, and 13. The BSEA will issue a Notice of Hearing in accordance with this Ruling.
So Ordered by the Hearing Officer,
/s/ Alina Kantor Nir
Alina Kantor Nir
Dated: December 16, 2025
[1] Melmark also argued that “[s]eparate and apart from the fact that the Parents request no accelerated relief against Melmark, any return of [Student] to Melmark would create an emergency situation threatening her health and safety and the health and safety of others.”
[2] Hearing Officers are bound by the BSEA Hearing Rules and the Standard Rules of Adjudicatory Practice and Procedure, 801 Code Mass Regs 1.01.
[3] Iannocchino v. Ford Motor Co., 451 Mass. 623, 636 (2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)).
[4] Blank v. Chelmsford Ob/Gyn, P.C., 420 Mass. 404, 407 (1995).
[5] Golchin v. Liberty Mut. Ins. Co., 460 Mass. 222, 223 (2011) (internal quotation marks and citations omitted).
[6] Blank, 420 Mass. at 407.
[7] This case is distinguishable from In Re Student v.Melmark New England and Bourne Public Schools, BSEA #2508471 (April 1, 2025) in which Hearing Officer Putney-Yaceshyn found Melmark to be Student’s stay-put placement.