COMMONWEALTH OF MASSACHUSETTS
DIVISION OF ADMINISTRATIVE LAW APPEALS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Student v. Natick Public Schools
BSEA # 24-06355
Ruling on Natick Public Schools’ Motion for Summary Judgment
Relevant Facts[1]
Student is a student within the Natick Public School District (hereinafter, Natick). Parents are divorced and share legal and physical custody and Student lives part time in each of their homes. In the fall of 2023, Student’s Mother requested an evaluation to determine if Student was eligible for special education services and provided consent for the evaluation. After a Team meeting to review the findings of the evaluation, a determination of No Eligibility was issued by Natick on or around December 13, 2023. Mother rejected the finding of no eligibility in a December 14 email. On December 22, 2023 Natick issued a Notice of Proposed Action proposing a second initial evaluation of Student. noting Mother’s concern that Student had an emotional disability. Mother consented to the evaluation on December 22, 2023. On January 4, 2024, Father filed a Request for Hearing alleging that he had refused consent for Natick to conduct further testing of Student and asking that Natick “cease and desist” any further evaluations of Student pending the outcome of the Hearing. On January 29, 2024 Natick filed a Motion for Summary Judgment. On January 30, 2024 Natick filed a supplemental citation in support of the Motion for Summary Judgment. On February 5, 2024 Father filed an Opposition to Natick’s Motion for Summary Judgment.
Natick’s Position
There are no genuine issues of material fact in dispute. Natick received Mother’s written consent for testing on or about December 22, 2023 and promptly scheduled said testing for Student. The requested testing is now underway. A Team meeting is scheduled to review the results of the testing in March 2024. Neither parent has asserted that the other parent is denied by law the right to request that special education testing be completed by Natick. Student’s father (hereinafter, “Father”) disagrees with Student’s mother’s (hereinafter, “Mother”) decision to request the testing. However, that dispute is between the parents, and does not involve Natick or the operative regulations regarding testing. Father does not cite to any specific law or argument to suggest that Natick should be prevented from completing the testing. Natick is simply fulfilling its obligation, under state and federal special education laws, to complete the requested testing within the prescribed timelines. To the extent that Parents have a dispute between themselves regarding issues pertaining to their son and his education, other forums for dispute resolution likely exist.
Father’s Position
Father opposes the Motion for Summary Judgment. He states that Natick conducted two prior comprehensive evaluations of Student which resulted in findings of no eligibility for special education services or provision of a 504 accommodation plan. He argues that it was not appropriate for Natick to propose, on December 22, 2023, a new evaluation following mother’s rejection of the finding of no eligibility. Father states that there should be a Hearing to determine whether consent for an additional evaluation of Student should have been acted upon by Natick.
Mother’s Position
Mother is not a party to this matter and has not requested permission to intervene.
Summary Judgment Standard
BSEA hearing officers are guided by the Federal and Massachusetts Rules of Civil Procedure, herein Rule 56, which 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.”[2]
The party seeking summary judgment, herein Natick, must first demonstrate, with the support of its documents (pleadings, affidavits, and other evidence), that there is no genuine issue of fact relating to the claim or defense. 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.[3] In response to a motion for summary judgment, the opposing party “must set forth specific facts showing that there is a genuine issue for trial.”[4] An issue is genuine if it “may reasonably be resolved in favor of either party.”[5] To survive this motion and proceed to hearing, the adverse party must show that there is “sufficient evidence” in her favor that the fact finder could decide for her.[6] In other words, 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.”[7] The non-moving party’s evidence will not suffice if it is comprised merely of “conclusory allegations, improbable inferences, and unsupported speculation.”[8] Evaluation of a motion for summary judgment permits the fact-finder to go beyond the pleadings to assess evidence.[9] Pursuant to 801 CMR 1.01(7)(h), summary decision may 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.”[10] As with motions to dismiss, in determining whether to grant summary judgment,
Analysis
Having considered Natick’s Motion, Father’s Opposition, and the supporting documents provided by each party, I find that there are no genuine issues of material fact in the instant matter. The undisputed facts show that Parents share legal and physical custody of Student. Mother provided consent upon receipt of Natick’s December 22, 2023 Evaluation Consent Form. Father did not consent to the evaluation and Natick scheduled the evaluation and a subsequent Team meeting.
As noted in a recent BSEA Decision (Scituate)[11], school districts must evaluate children whenever a parent with educational decision-making authority consents to an initial evaluation: “Upon consent of a parent, the school district shall provide or arrange for the evaluation of the student by a multidisciplinary school team within 30 school days.” [12] (Emphasis supplied). Within 45 school working days after receipt of consent from a parent, the school is required to complete the evaluations, convene a Team meeting, determine eligibility and, if the Team finds the child eligible for special education, develop an IEP for the child.[13]
As emphasized in Scituate, the regulatory language referenced above is mandatory.[14] Upon receipt of consent of a parent, a school district must conduct an evaluation within 30 school days. It is well settled that a school district does not have discretion to refuse to evaluate a child, or to delay such evaluation beyond the 30-school day timeline if a parent has provided consent. See In Re: Boston Public Schools, Ruling on Parent’s Motion for Partial Summary Judgment, BSEA No. 01-2461 (Crane, 2001). In that case, the hearing officer ruled that under Massachusetts law, the right to an evaluation is “unequivocal,” and that the Boston Public Schools violated state law when it refused to evaluate a student until it had completed “pre-referral” activities.
The applicable Massachusetts statute and regulations similarly require informed consent of a parent prior to conducting an evaluation of a child, as well prior to implementing, changing or removing services set forth in an IEP or changing an eligible child’s placement.[15] The state regulations define consent as “agreement by a parent who has been fully informed of all information relevant to the activity for which consent is sought…understands and agrees in writing to the carrying out of the activity, and understands that the granting of consent is voluntary and may be revoked at any time…” [16]
Notably, the language in the above-cited statutes and regulations uses the singular form of “parent” with respect to consent for an evaluation, indicating that the consent of only one parent is required. This is in contrast to some other provisions in the state regulations, which use the plural form, “parents”, when discussing activities such as providing parents with copies of evaluation reports prior to an IEP meeting or sending parents two copies of the proposed IEP. The BSEA has long interpreted the regulations to mean that if one parent with educational decision-making authority consents to an evaluation, then, absent a court order or other mandate to the contrary (such as an order giving the non-consenting parent sole educational decision-making authority), a district must implement the evaluation to which the parent has consented.
Based upon the foregoing, Natick was required to complete the evaluation to which Mother consented. Father has cited to no legal basis for preventing Natick from completing the evaluation. A dispute between parents who share legal custody regarding whether the evaluation was necessary is not within the jurisdiction of the BSEA and must be decided in an alternate forum.
ORDER
Natick’s Motion for Summary Judgment is ALLOWED.
Dated: February 7, 2024
COMMONWEALTH OF MASSACHUSETTS
DIVISION OF ADMINISTRATIVE LAW APPEALS
BUREAU OF SPECIAL EDUCATION APPEALS
EFFECT OF FINAL BSEA ACTIONS AND RIGHTS OF APPEAL
Effect of BSEA Decision, Dismissal with Prejudice and Allowance of Motion for Summary Judgment
20 U.S.C. s. 1415(i)(1)(B) requires that a decision of the Bureau of Special Education Appeals be final and subject to no further agency review. Similarly, a Ruling Dismissing a Matter with Prejudice and a Ruling Allowing a Motion for Summary Judgment are final agency actions. If a ruling orders Dismissal with Prejudice of some, but not all claims in the hearing request, or if a ruling orders Summary Judgment with respect to some but not all claims, the ruling of Dismissal with Prejudice or Summary Judgment is final with respect to those claims only.
Accordingly, the Bureau cannot permit motions to reconsider or to re-open either a Bureau decision or the Rulings set forth above once they have issued. They are final subject only to judicial (court) review.
Except as set forth below, the final decision of the Bureau must be implemented immediately. Pursuant to M.G.L. c. 30A, s. 14(3), appeal of the decision does not operate as a stay. This means that the decision must be implemented immediately even if the other party files an appeal in court, and implementation cannot be delayed while the appeal is being decided. Rather, a party seeking to stay—that is, delay implementation of– the decision of the Bureau must request and obtain such stay from the court having jurisdiction over the party’s appeal.
Under the provisions of 20 U.S.C. s. 1415(j), “unless the State or local education agency and the parents otherwise agree, the child shall remain in the then-current educational placement,” while a judicial appeal of the Bureau decision is pending, unless the child is seeking initial admission to a public school, in which case “with the consent of the parents, the child shall be placed in the public school program.”
Therefore, where the Bureau has ordered the public school to place the child in a new placement, and the parents or guardian agree with that order, the public school shall immediately implement the placement ordered by the Bureau. School Committee of Burlington v. Massachusetts Department of Education, 471 U.S. 359 (1985). Otherwise, a party seeking to change the child’s placement while judicial proceedings are pending must ask the court having jurisdiction over the appeal to grant a preliminary injunction ordering such a change in placement. Honig v. Doe, 484 U.S. 305 (1988); Doe v. Brookline, 722 F.2d 910 (1st Cir. 1983).
Compliance
A party contending that a Bureau of Special Education Appeals decision is not being implemented may file a motion with the Bureau of Special Education Appeals contending that the decision is not being implemented and setting out the areas of non-compliance. The Hearing Officer may convene a hearing at which the scope of the inquiry shall be limited to the facts on the issue of compliance, facts of such a nature as to excuse performance, and facts bearing on a remedy. Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief, including referral of the matter to the Legal Office of the Department of Elementary and Secondary Education or other office for appropriate enforcement action. 603 CMR 28.08(6)(b).
Rights of Appeal
Any party aggrieved by a final agency action by the Bureau of Special Education Appeals may file a complaint in the state superior court of competent jurisdiction or in the District Court of the United States for Massachusetts, for review. 20 U.S.C. s. 1415(i)(2).
An appeal of a Bureau decision to state superior court or to federal district court must be filed within ninety (90) days from the date of the decision. 20 U.S.C. s. 1415(i)(2)(B).
Confidentiality
In order to preserve the confidentiality of the student involved in these proceedings, when an appeal is taken to superior court or to federal district court, the parties are strongly urged to file the complaint without identifying the true name of the parents or the child, and to move that all exhibits, including the transcript of the hearing before the Bureau of Special Education Appeals, be impounded by the court. See Webster Grove School District v. Pulitzer Publishing
Company, 898 F.2d 1371 (8th. Cir. 1990). If the appealing party does not seek to impound the documents, the Bureau of Special Education Appeals, through the Attorney General’s Office, may move to impound the documents.
Record of the Hearing
The Bureau of Special Education Appeals will provide an electronic verbatim record of the hearing to any party, free of charge, upon receipt of a written request. Pursuant to federal law, upon receipt of a written request from any party, the Bureau of Special Education Appeals will arrange for and provide a certified written transcription of the entire proceedings by a certified court reporter, free of charge.
[1] The facts are established for purposes of this Ruling only.
[2] Id.
[3] Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 252 (1986); see also In Re: Westwood Pub. Schl., BSEA # 10-1162 (Figueroa, 2010); In Re: Mike v. Boston Pub. Sch., BSEA # 10-2417 (Oliver, 2010); Zelda v. Bridgewater-Raynham Pub. Sch. and Bristol Cty Agricultural Sch., BSEA # 06-0256 (Byrne, 2006).
[4] Anderson, 477 U.S. at 250.
[5] Maldanado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 581 (1st Cir. 1994).
[6] Anderson, 477 U.S. at 249.
[7] Mack v. Great Atl. & Pac. Tea Co., 871 F.2d 179, 181 (1st Cir. 1989).
[8] Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990).
[9] Rule 12(b) of the Federal Rules of Civil Procedure
[10] 801 CMR 1.01(7)(h).
[11] In Re Scituate Public Schools, BSEA #2212421 (2022)
[12] 603 CMR 28.04(2).
[13] 603 CMR 2.05(1).
[14] Conversely, a school district may not seek relief before the BSEA against a parent who refuses consent to an initial evaluation. 603 CMR 28.
[15] MGL c. 71B § 3, 603 CMR 28.04(1), 603 CMR 28.07.
[16] 603 CMR 28.01(d)