In re: Student v. Marshfield Public Schools – BSEA #  22-09242

COMMONWEALTH OF MASSACHUSETTS

DIVISION OF ADMINISTRATIVE LAW APPEALS

BUREAU OF SPECIAL EDUCATION APPEALS

In re: Student v. Marshfield Public Schools

BSEA #  2209242

RULING ON PARENT’S NOTICE/MOTION

This matter comes before the Hearing Officer on Parent’s Notice/Motion (Motion) seeking to “[s]tay” the “present proceedings” until December 31, 2022 in order to allow Parent to appeal the May 13, 2022 Ruling on Marshfield Public Schools’ Motion to Dismiss/Motion for Summary Judgment/Response to Parent’s Request for Hearing/Response to Parent’s Motions (May 13, 2022 Ruling) and to “obtain[] final judgment on said appeal.” A hearing in this matter is scheduled to begin on July 13, 2022.

Neither party has requested a hearing on the Motion. 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 set forth below, the Parent’s Motion is DENIED.

 PROCEDURAL HISTORY AND RELEVANT FACTS

1. Student is a seventeen year old twelfth grade student who currently attends Middlebridge School in Rhode Island, where she was unilaterally placed by Parent on January 23, 2020.

2. On December 26, 2019, Parent filed a Request for Hearing with the BSEA (BSEA No. 20-05814) alleging, in part, that: the District’s January 2020 and February 2020[1] IEPs did not offer Student a free and appropriate public education (FAPE) in the least restrictive environment (LRE); the District engaged in harassment and retaliation; and, the District withheld Student’s education records. On September 4, 2020, Hearing Officer Ray Oliver concluded, in part, that the District’s January 2020 and February 2020 IEPs offered Student a FAPE in the LRE (2020 BSEA Decision).

3. On December 3, 2020, Parent filed in the Massachusetts Superior Court appealing, among other things, Hearing Officer Oliver’s findings in the 2020 BSEA Decision. Parent argued several causes of action, including but not limited to denial of a FAPE; fraudulent misrepresentation and/or omission of material fact and/or records; retaliation; discrimination; improper disclosure of personally identifiable information; and withholding education records. The District removed the case to federal court on December 21, 2020.

4. The U.S. District Court stayed all claims and proceeded only on the claim for judicial review of the BSEA decision. Parent moved for summary judgment. The District and the BSEA opposed the summary judgment motion with the District filing a cross motion for summary judgment. On February 8, 2022, the U.S. District Court issued an order entitled Order on Pending Motions (Doc. Nos. 42, 54, 56, 64, 67, 99, 102, 105, 108), Civil No. 20-12259-LTS (D. Mass. February 8, 2020) granting summary judgment in favor of the District as to the claims that involved an appeal of the BSEA decision. On March 30, 2022, the U.S. District Court further ordered that “now [that the Court has] resolved [the BSEA appeal claim and grant[ed] the BSEA’s request … to enter a separate and final judgment on that claim,” the Court “VACATE[S] the stay on the remaining claims.”

5. On April 9, 2022[2], Parent filed Parent’s Refiled and/or Amended Administrative Law Due Process Hearing Request (Hearing Request) in this matter. Parent asserted a litany of claims, including but not limited to[3] denial of a FAPE in the LRE due to the District’s failure to revise Student’s IEP to accommodate for COVID-19; failure of the IEP proposed for the periods from 1/6/2021 to 1/5/2022 and for the period from 1/3/2022 to 1/2/2023, respectively, to offer Student a FAPE in the LRE; denial of procedural safeguards relative to the January 25, 2021 and January 3, 2022 Team meetings; failure to maintain confidentiality of Student’s student record; concealment of evidence; creation of “a pervasively hostile, retaliatory, discriminatory, biased environment against Plaintiffs on the basis of the Child’s disability and/or on the basis of Parent’s disability-based advocacy”; denial of “a safe stay put [sic] placement”; failure to maintain Student in Middlebridge School during the pendency of the instant dispute as Student’s stay-put placement; and denial of meaningful parental participation. Parent’s Hearing Request also included additional motions for accelerated status, access to records and a protective order. At Parent’s request, the motions were scheduled for a motion session on April 28, 2022.

6. A hearing was scheduled for May 26, 2022.[4]

7. On April 21, 2022, the District filed Marshfield Public Schools’ Motion to Dismiss/Motion for Summary Judgment to dismiss all of Parent’s claims save for those “relative to the COVID compensatory claims.”

8. On April 27, 2022, Parent withdrew her motions for accelerated status, access to records and a protective order, without prejudice.

9. On May 2, 2022, Parent filed a second Request for Hearing alleging that the District had not provided her with requested education records (BSEA No. 2210121). On May 5, 2022, the District motioned the BSEA to consolidate BSEA No. 2210121 with the present matter.

10. On May 13, 2022, the Hearing Officer granted the District’s Motion to Dismiss/Motion for Summary Judgment, in part, and denied it, in part. The Hearing Officer delineated the following issues remaining for Hearing:

a. Whether the District denied Student a FAPE in the LRE by failing to revise Student’s IEP to accommodate for COVID-19, including failure to “consider, communicate, and/or propose how [the District] intended to make [the] 1/2020 and/or 2/2020 ‘proposed’ [IEPs] and/or Placements appropriate in light of the pandemic, and/or did not timely reconvene a Team meeting to consider the child’s needs in light of the same, which denied the Child a FAPE and/or which denied Plaintiff her right to participate in the Child’s educational decision making”;

b. Whether the District’s proposed IEPs for the periods from 1/6/2021 to 1/5/2022 and from 1/3/2022 to 1/2/2023, respectively, failed to offer Student a FAPE in the LRE;

c. Whether the District denied Parent meaningful participation in the IEP process by:

a. denying Parent access to student records in advance of the January 25, 2021 and the January 3, 2022 Team meetings;

b. failing to provide Parent with proper notice of the January 6, 2021 Team meeting;

c. refusing to consider and discuss Parent’s concerns at both the January 25, 2021 and the January 3, 2022 Team meetings;

d. having opposing counsel attend at the January 25, 2021 and the January 3, 2022 Team Meetings; and

e. failing to invite Student’s current providers to both the January 25, 2021 and the January 3, 2022 Team Meetings.

11. On May 13, 2022, Parent requested that she be permitted to “frame [her] issues in [her] own way for hearing.”

12. Also on May 13, 2022, the Hearing Officer consolidated BSEA Matter Nos. 22099242 and 2210121. Subsequently, Parent withdrew her Hearing Request in BSEA No. 2210121 without prejudice.

13. On May 16, 2022, the Hearing Officer granted Parent’s request to frame the issues for hearing and asked that Parent submit them to the Hearing Officer and opposing party for consideration by the close of business day on May 16, 2022. On May 17, 2022, Parent reiterated her request, and the Hearing Officer granted Parent additional time to submit the issues for consideration.

14. On May 19, 2022, Parent requested a postponement in the above-referenced matter until June 13, 2022 to allow her sufficient time to file for injunctive relief. Parent requested that the hearing be scheduled for 5 consecutive days in June or July 2022. Neither the Hearing Officer nor the District had such availability. On May 23, 2022, the Hearing was postponed for good cause until June 13, 2022.[5] In addition, the Hearing Officer granted Parent yet additional time, until June 1, 2022, to submit her version of the issues for hearing.[6]

15. On May 23, 2022, Parent emailed the Hearing Officer, the District and the Director of the BSEA, Reece Erlichman, inquiring whether “any hearing officers have 5 closely consecutive hearing dates available in July, or on dates that straddle June/July [or] if the BSEA [was] utilizing its ability to retain temporary hearing officer(s).”

16. On June 1, 2022, Parent filed the instant Motion. In it, Parent asserts that “[b]y and through the BSEA’s 5/13/2022 Ruling [on the District’s Motion to Dismiss/Motion for Summary Judgment], the BSEA has effectively terminated all of [Parent’s] claims and/or defenses, as well as [Parent’s] ability to adequately prepare for hearing. [Parent] will be formally appealing the 5/13/2022 Ruling, and therefore require[s] and request[s] a [s]tay of the present proceedings until … [Parent] obtain[s] final judgment on said appeal.” Parent requested that the Hearing Officer “stay the proceedings until 12/31/2022.”

17. On June 2, 2022, the District filed Marshfield Public Schools’ Response to Parent’s Notice/Motion asserting that

“Marshfield has no objections to cancelling the hearing dates of June 13 and July 21; however, Marshfield understands that, as a general rule, when parties file a hearing request they should be prepared to proceed to hearing in a timely manner. A seven-month stay, from June, 2022 to December 31, 2022, as proposed by the Parent, would not be indicative of Parent’s readiness to proceed to hearing in a timely manner.

Therefore, Marshfield respectfully suggests that the proper response to the Parents’ Notice/Motion would be to allow the Parent to withdraw her hearing request at this time.”

LEGAL STANDARD

 1. Legal Standard for Postponements

 Hearing Officers are bound by the BSEA Hearing Rules for Special Education Appeals (Hearing Rules) and the Standard Rules of Adjudicatory Practice and Procedure, 801 Code Mass Regs 1.01.  BSEA Hearing Rule III governs requests for postponement. Pursuant to this rule, a party may request postponement of a hearing at least 6 business days before the scheduled hearing date. The Hearing Officer may grant this request for good cause. The decision whether to postpone a hearing is within the discretion of the Hearing Officer, who must give serious consideration to opposition to a request. Similarly, 801 CMR 1.01(7)(d) states that

“[f]or good cause shown a scheduled hearing may be continued to another date:

    1. by agreement of all Parties with the permission of the Presiding Officer, provided the Presiding Officer receives a letter confirming the request and agreement before the hearing date; or
    2. by written motion to continue made by a Party at least three days prior to the hearing date; or
    3. by the Presiding Officer on his or her own motion or upon a motion to continue made at the scheduled hearing.”

Caselaw further demonstrates that whether to continue any judicial proceeding is a matter entrusted to the sound discretion of the judge, and his decision will be upheld absent an abuse of that discretion.[7] However, such discretion is not unfettered.[8]  In considering a request for a continuance, a judge should consider whether the failure to grant a continuance “would be likely to make a continuation of the proceeding impossible, or result in a miscarriage of justice.”[9] In determining whether to grant a continuance, judges are to be guided by the “controlling principle … that a continuance should be granted only when justice requires.”[10]

APPLICATION OF LEGAL STANDARDS

In the present matter, I cannot find that “justice requires” a granting of Parent’s request for a seven month stay in the current proceedings.  Specifically, Parent seeks a “stay” or a continuance of the matter until December 31, 2022 so that she may appeal the May 13, 2022 Ruling. However, Parent was in receipt of the May 13, 2022 Ruling on May 19, 2022 when she requested a postponement of the matter until June 2022. When granted a postponement until June 13, 2022, Parent advocated for 5 consecutive hearing dates in June and even requested a reassignment of hearing officers to allow her to proceed to hearing at that time. At no time did she indicate that a longer stay was necessary for her to proceed in this matter.

Now, as the Hearing is scheduled to begin in two weeks, Parent asserts that “[b]y and through the BSEA’s 5/13/2022 Ruling [on the District’s Motion to Dismiss/Motion for Summary Judgment], the BSEA has effectively terminated all of [Parent’s] claims and/or defenses, as well as [Parent’s] ability to adequately prepare for hearing.” However, the May 13, 2022 Ruling did not “effectively terminate” all of Parent’s claims; to the contrary, the May 13, 2022 Ruling delineates several remaining issues for Hearing, and Parent was granted multiple opportunities to “reframe” the issues for Hearing, although she has failed to do so. Moreover, Parent may pursue her appeal of the May 13 Ruling and proceed to hearing on the remaining issues concurrently.

Parent’s assertion that the May 13, 2022 Ruling has impacted her “ability to adequately prepare for hearing” is also unpersuasive. Parent filed this matter with the BSEA on April 9, 2022; Parent has had ample time to engage in discovery and prepare for hearing. Therefore, Parent’s request for a seven month stay in the current matter is DENIED.

Nevertheless, although I find that “justice” does not “require” a granting of a continuance, in light of Parent’s pro se status, I would be inclined to consider a short postponement request if Parent wishes to amend and resubmit her request.

ORDER

Parent’s Motion is DENIED. Nevertheless, if Parent wishes to seek a postponement of the Hearing until August/September 2022, she must submit her availability to the Hearing Officer and the District by the close of business day on June 6, 2022.

So ordered,

By the Hearing Officer,

 

_________________________________________
Alina Kantor Nir

Date: June 3, 2022

 

 

[1] Subsequent to Parent’s December 2019 filing, the Team convened and revised the IEPs.

[2] Parent’s original request for hearing in the instant matter was amended and refiled on same date.

[3] The May 13, 2022 Ruling includes an exhaustive review of Parent’s Request for Hearing and the claims asserted therein.

[4] The Notice of Hearing for BSEA No. 22099242, issued on April 11, 2022, set the initial hearing date for May 16, 2022. Subsequently, on April 13, 2022, the Hearing Officer issued an Order stating, in part, that “[p]ending the Hearing Officer’s ruling regarding accelerated status, the Hearing is scheduled to begin on May 26, 2022. It will take place via a virtual platform and will begin at 9:30AM. Exhibits and witness lists are due at by the close of business day May 19, 2022.” In this order, “May 26” represented a typographical error (that is, it should have read “May 16”). This error was not called to the Hearing Officer’s attention (despite multiple subsequent orders referring to same) until May 13, 2022, when it was raised in Parent’s Response to Marshfield Public Schools’ Motion to Dismiss/Motion for Summary Judgment. In the May 13, 2022 Ruling on Marshfield Public Schools’ Motion to Consolidate and Marshfield Public Schools’ Extension Request and Marshfield Public Schools’ Postponement Request, the undersigned Hearing Officer ordered that the Hearing would proceed on May 26, 2022.

[5] The Hearing was scheduled for June 13 and July 21, 2022

[6] To date, Parent has not submitted her “reframed” issues to the BSEA.

[7] See, e.g., Commonwealth v. Fall River Motor Sales, Inc., 409 Mass. 302, 307, 565 N.E.2d 1205 (1991); Caira v. Zurich Am. Ins. Co., 91 Mass. App. Ct. 374, 384, 76 N.E.3d 1002, 1011 (2017); In re Quinn, 54 Mass. App. Ct. 117, 120, 763 N.E.2d 573, 577–78 (2002).

[8] See, e.g., Commonwealth v. Super, 431 Mass. 492, 496, 727 N.E.2d 1175 (2000); Commonwealth v. Clegg, 61 Mass.App.Ct. 197, 200, 808 N.E.2d 818 (2004); Com. v. Burston, 77 Mass. App. Ct. 411, 417, 931 N.E.2d 1019, 1024 (2010).

[9] Com. v. Borders, 73 Mass. App. Ct. 911, 912, 900 N.E.2d 117, 119 (2009) (internal quotations and citations omitted).

[10] Burston, 77 Mass. App. Ct. at 417.

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