In re: Student v. Newburyport Public Schools – BSEA # 23-11471, 24-01600

COMMONWEALTH OF MASSACHUSETTS

DIVISION OF ADMINISTRATIVE LAW APPEALS

BUREAU OF SPECIAL EDUCATION APPEALS

In re: Student v. Newburyport Public Schools

BSEA # 23-11471, 24-01600

RULING ON NEWBURYPORT PUBLIC SCHOOLS’

PARTIAL MOTION TO DISMISS CLAIMS

AND ON

NEWBURYPORT PUBLIC SCHOOLS’ MOTION TO DISMISS FOR MOOTNESS

This matter comes before the Hearing Officer on two motions filed by Newburyport Public Schools (District or Newburyport). Specifically, on October 27, 2023, the District filed Newburyport Public Schools’ Partial Motion to Dismiss Claims (Motion #1), in which the District asserted that the issues identified in Parents’ August 15, 2023 Hearing Request (Hearing Request #2) (BSEA # 2401600) and in Parents’ October 27, 2023 Amendment to Hearing Requests (Amendment) “were either: 1) already dismissed by the Hearing Officer in her August 4, 2023 ruling or 2) beyond the scope of the BSEA’s jurisdiction.”

Subsequently, on October 31, 2023, the District filed Newburyport Public Schools’ Motion to Dismiss for Mootness (Motion #2) (together with Motion #1, the Motions), in which the District asserted that “the Parents’ retroactive and prospective claims should be dismissed as moot” because Newburyport “offered compensatory services and reimbursement that exceeds what the Hearing Officer could order if the Parents fully prevailed on their retroactive claims. The District offered the Parents a private day school placement, which is exactly what they are asking the Hearing Officer to order. As such, the Parents’ claims are moot and should be dismissed as a matter of law.”

On November 1, 2023, Parents filed Parents’ Opposition to Newburyport Public Schools’ Partial Motion to Dismiss (Opposition #1). On November 3, 2023, Parents filed Parents’ Opposition To Newburyport Public Schools’ Motion To Dismiss For Mootness (Opposition #2), asserting, in part, that “placement and compensatory services are ripe for hearing as well as all 13 issues currently presented in Parents’ consolidated Hearing Request.”

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 set forth below, the District’s Motions are hereby ALLOWED, in substantial part, and DENIED, in part.

RELEVANT FACTS[1] AND PROCEDURAL HISTORY:

Student is a 15-year-old resident of Newburyport, Massachusetts. She is currently receiving home-based non-educational services through insurance, after Parents unilaterally removed her from her placement at Legacy by Gersh/Crotched Mountain (hereinafter, Legacy or Legacy/Crotched Mountain) in July 2022. The District had placed Student at Legacy/Crotched Mountain on November 29, 2021, pursuant to a fully accepted IEP (November 2021 IEP). She is diagnosed with Autism Spectrum Disorder, Epilepsy, and Attention Deficit Hyperactivity Disorder (ADHD).
While Student attended Legacy/Crotched Mountain, Parents became concerned that Student’s maladaptive behaviors increased and that Student sustained injuries at school from other students.
On May 13, 2022, the Team convened for an annual review, and the District proposed an IEP designating Legacy/Crotched Mountain as a day placement. The Team agreed to reconvene in July 2022 to discuss the Student’s transition to a residential program in the fall of 2022.
Following the Team meeting, the District proposed an Individual Education Program (IEP) covering May 13, 2022 to May 12, 2023, and a private day placement at Legacy. Parents partially rejected the IEP on or about June 23, 2022, and did not indicate a response to the proposed placement.
On or about May 23, 2022, the parties entered into a Settlement Agreement which included a release of any and all claims the Parents had or may have against the District through the date of execution of the Agreement.[2]
On June 30, 2022, Parents rejected the placement at Legacy, and, on or about July 5, 2022, Parents unilaterally removed Student from her agreed upon program and placement at Legacy.
On July 8, 2022, a mediation was scheduled for July 26, 2022. Parents chose to delay this mediation until the new Newburyport Director of Student Services began his tenure.
In the fall of 2022, the District reaffirmed that it would provide Student with her “stay put” placement at Legacy/Crotched Mountain. The District also offered to send formal referral packets to other programs, and Parents consented to send some of the referrals but not others.
From July 2022 to December 2022, Student was provided with Board Certified Behavior Analyst (BCBA) support and a 1:1 aide at cost to Parents.
On January 24, 2023, a Team meeting was held to review a BCBA Observation Report completed in June 2022 while Student was attending Legacy/Crotched Mountain. Staff from Legacy/Crotched Mountain (now, as a result of a change of management and ownership, Seven Hills) were not present. Subsequently, Parents agreed to have the District send referrals to day placements within commuting distance of Student’s home.
On May 18, 2023, Parents filed a Hearing Request in the instant matter[1] (Hearing Request #1) (BSEA # 2311471) asserting the following issues for Hearing:[4]
1. Whether District failed in oversight to provide a [free, appropriate public education] FAPE to Student while Student attended Legacy?
2. Whether District failed in its duty to act to provide a FAPE to Student when presented with an independent BCBA observation report in June 2022 to still not providing [sic] education services to Student at present?
3. Whether the District wrongly, repeatedly and fraudulently, stated it was paying Student’s stay-put placement, when in fact District was not paying for the placement but repeatedly requested Student go back to placement?
4. Whether the District was deliberately indifferent, the conscious or reckless disregard of the consequences of one’s acts or omissions, [sic] to the Student and Parent’s due process rights and the Student’s right to FAPE amounting to harm to Student and Family by: blatantly ignoring the BCBA observation report received by the District in June 2022 observing Student not receiving FAPE in stay-put placement at then-Legacy by Gersh; the lack of oversight in support to protect Student with notification of numerous incident reports; the District not inquiring about Student whom to the District’s knowledge was without a placement for more than 90 days to first meeting with new District personnel; the District’s two-month delay to a scheduled mediation; the District’s lack of good faith at mediation to resolve both issues; the District’s unilateral postponement of the IEP meeting to six months later; the District’s denial of meaningful participation to Parents by the District not inviting stay-put placement (formerly Legacy and at the time, Seven Hills) to an IEP meeting while the District continued to propose the placement at the same meeting; the District’s egregious misrepresentations and omissions in the N1 of January 24, 2023 IEP meeting; the District’s two misleading public records request responses asking only for expenditures requiring Parents’ appeal to the Secretary of State, then again the District’s additional misleading response to the appeal for records to the Secretary of State requesting; District’s lack of good faith to continue a previous settlement agreement when a change of director/district representative occurred at the District and the school district’s attorney remained the same throughout?
5. Whether the District’s lack of action in these claims and inclusive of the facts contained herein, determined to be deliberate indifference or not, amount to retaliatory action [sic] given the number of procedures before the BSEA in most recent years and the harm to Student and Family?
6. Whether District failed in its duty to reserve Student’s stay-put placement while continually requesting that Student return to placement, with deliberate indifference or not, to Student’s needs?
7. Whether the District denied Parents/Student meaningful participation during the January 24, 2023, IEP meeting; and whether this IEP meeting’s subsequent N1 written by the District contains egregious misrepresentations and/or omissions and those misrepresentations and/or omissions impede Student’s and Parents’ rights?
8. Whether District disregarded and/or violated public records law in responses to both the Parents and Secretary of State when District did not submit proof of expenditures in District’s responses as specifically asked in the Parents’ public records request and Secretary’s determinations; and whether the District’s disregard and/or violation amounted to deception that resulted in financial gain of the District instead of expenses of the Student’s education causing harm to Student and Family?
Parents sought the following relief[5]:
1. Non-retaliatory and non-discriminatory partnership with District to provide services to Student that District is legally required to provide Student until age 22;
2. An interim home-based program supported by District inclusive of staff and adequate funding for Student until a permanent day placement can be found;
3. A brick-and-mortar day placement, a least restrictive environment with appropriately trained staff including behavior support/[Applied Behavior Therapy] ABA for Student’s unique needs;
4. Compensatory services for the time that Student was not provided with a FAPE inclusive of Student’s placement at Legacy and the June 2022 observation report; Compensatory damages; Attorney’s fees;
5. A declaration of procedural and substantive violations in this matter; and
6. All other remedies available pursuant to the Code of Massachusetts Regulations Chapter 603, Section 28.00, the Individuals with Disabilities Education Act, 20 U.S.C. § 1400, et seq., Chapter 766 of the Acts of 1972, M.G.L. c. 71B, Section 504 of the Rehabilitation Act of 1972, 29 U.S.C. 794, 34 C.F.R. Part 104; and Title II of Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. and Civil Action for Deprivation of Rights, 42 U.S.C. §1983, The Fourteenth Amendment, and applicable contract law.
In May 2023, the District failed to reconvene the TEAM for an annual IEP Meeting, including but not limited to, developing the Student’s 2023-2024 IEP.
On August 1, 2023, the District filed Newburyport Public Schools’ Motion to Dismiss certain claims.
On August 4, 2023, the undersigned Hearing Officer issued a Ruling on Newburyport Public Schools’ Motion to Dismiss (August 4, 2023 Ruling), allowing it, in part, and denying it, in part. Specifically, the following claims were dismissed with prejudice:
1. Whether District failed in oversight to provide a FAPE to Student while Student attended Legacy?
2. Whether the District failed to offer Student a FAPE during the 2021-2022 school year?
3. Whether the District failed to mediate in good faith?
4. Whether the District failed “to continue” a previous settlement agreement?
5. Whether the District wrongly, repeatedly and fraudulently, stated it was paying for Student’s stay-put placement, when in fact District was not paying for the placement but repeatedly requested Student go back to placement?
6. Whether the District’s lack of action in Parent’s claims determined to be deliberate indifference or not, amount to retaliatory action given the number of procedures before the BSEA in most recent years and the harm to Student and Family?
7. Whether District disregarded and/or violated public records law in responses to both the Parents and Secretary of State when District did not submit proof of expenditures in District’s responses as specifically asked in the Parents’ public records request and Secretary’s determinations; and whether the District’s disregard and/or violation amounted to deception that resulted in financial gain of the District instead of expenses of the Student’s education causing harm to Student and Family?
  
  The following issues were identified for Hearing:
1. Whether the District failed to offer Student a FAPE in the LRE during the 2022-2023 school year by “blatantly ignoring the BCBA observation report received by the District in June 2022”; failing to inquire “about Student whom to the District’s knowledge was without a placement for more than 90 days to first meeting with new District personnel”; unilaterally postponing the IEP meeting by six months; denying Parents of meaningful participation by “not inviting stay-put placement (formerly Legacy and at the time, Seven Hills) to an IEP meeting while the District continued to propose the placement at the same meeting”; and/or misrepresenting and omitting information in the N1 for January 24, 2023 IEP meeting; and, if so, whether the District acted with deliberate indifference in violation of Section 504 of the Rehabilitation Act?
2. Whether the District failed to offer Student the opportunity to ‘stay-put’ in her last agreed upon placement from on or about July 1, 2022, when the Parents removed her from Legacy?
3. Whether the District denied Parents/Student meaningful participation during the January 24, 2023, IEP meeting; and whether this IEP meeting’s subsequent N1 written by the District contains egregious misrepresentations and/or omissions and those misrepresentations and/or omissions impede Student’s and Parents’ rights?
4. If the answer to either/and/or (1), (2) and (3) is in the affirmative, what is the appropriate remedy? and,
5. Whether the District’s offer of a prospective residential placement offers Student FAPE, whether required for substantive reasons or due to proximity between home and school?
The Hearing in BSEA Matter No. 2311471 took place via a virtual format on August 7 and 8, 2023. It is scheduled to continue on November 8, 17, 20, and 21, 2023.
On August 15, 2023, Parents filed a Hearing Request (Hearing Request #2), BSEA # 2401600, seeking expedited status and asserting the following issues for Hearing[6]:
1. Whether Newburyport’s IEPs for the 2022-2023 and 2023-2024 school years are reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment?
2. If Newburyport has not provided an IEP for the periods noted immediately above to the child, whether District acted with more than just negligence and/or inclusive of deliberate indifference in violation of Section 504 of the Rehabilitation Act?
3. Whether District was more than negligent and/or deliberately indifferent, the conscious or reckless disregard of the consequences of one’s acts or omissions, to the Student and Parent’s due process rights and the Student’s right to FAPE amounting to harm to Student and Family inclusive of the facts herein and not limited to the District: blatantly ignoring student’s unique needs and mental well-being, knowingly and continually providing an inadequate IEP and/or not providing an IEP at all to the detriment of Student’s FAPE, well-being and overall quality of life?
4. Whether the District’s actions or inactions, as the case may be, inclusive but not limited to this request amount to more than negligence as to invalidate the May 2022 Waiver of Claims and, if so, whether the 2021-2022 IEP, November 2021 amendment and subsequent amendments for the 2021-2022 school year were reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment?
5. Whether the District’s lack of actions in the 2022-2023 and 2023-2024 school years to provide Student with a FAPE (Issue #1), determined to be more than negligent and/or deliberate indifference or not, amount to retaliatory action that denied Student a FAPE?
  
  Parents sought the following relief[7]:
6. An interim home-based program (based on principles and direction of a qualified professional with knowledge of Student) supported by the District inclusive of staff and adequate funding for Student’s program until a permanent appropriate day placement can be found,
7. A brick-and-mortar day placement, in a least restrictive environment with appropriately trained staff including but not limited to academic programming and behavior support/ABA services for Student’s unique needs to provide a FAPE to Student,
8. A District-funded observation by Student’s Education Consultant and/or Neuropsychologist, both named within this request, of the proposed brick-and-mortar program before Student enters the proposed brick-and-mortar program given the harm Student endured from her last placement,
9. Timelines and benchmarks to hold the District accountable for their involvement in Student’s education and to protect Student’s right to a FAPE,
10. Compensatory services for Student inclusive of the issues and facts herein,
11. Attorney’s fees,
12. Credible findings as to testimony and documentary evidence with regard to issues within the jurisdiction of the BSEA, including but not limited to, a declaration of procedural and substantive violations in this matter, and
13. All other remedies available pursuant to the Code of Massachusetts Regulations Chapter 603, Section 28.00, the Individuals with Disabilities Education Act, 20 U.S.C. § 1400, et seq., Chapter 766 of the Acts of 1972, M.G.L. c. 71B, Section 504 of the Rehabilitation Act of 1972, 29 U.S.C. 794, 34 C.F.R. Part 104; and Title II of Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. and Civil Action for Deprivation of Rights, 42 U.S.C. §1983, The Fourteenth Amendment, and applicable contract law.
On August 16, 2023, BSEA Matter No. 2401600 was denied expedited hearing status. However, the hearing request appeared to qualify, in part, for accelerated status, pursuant to Rule II D of the Hearing Rules for Special Education Appeals. The remaining issues were processed on a regular track.
On August 28, 2023, Parents withdrew their request for an accelerated Hearing.
Also on August 28, 2023, BSEA Matter Nos. 2311471 and 2401600 were consolidated (over the District’s objection), and the matters were scheduled to proceed to hearing on November 8, 17 and 20, 2023. [8]
An IEP Team meeting was held on September 28[1] and October 11, 2023 and subsequently an IEP and placement were proposed. Specifically, the District proposed an IEP for the period 10/11/2023 to 10/10/2024 with goals in: Functional Communication, Expressive Language, Receptive Language, Functional Motor Skills, Functional Mobility, Daily Living Skills, Functional Academics, Social, and Behavior. Proposed services included: AAC Consult 2x60m/month (A), Speech Language Consult lx60m/month (A), Academic Consult 16x60m/week (A), BCBA Consult 1x30m/week (A), OT Consult 2x60m/month (A), PT Consult 12x60m/year (A), Speech Language 3x45m/week (C), 1:1 Support 5x360m/week (C), AAC 3x30m/week (C), Academics 5x225m/week (C), ADL 5x30m/week (C), OT 2x45m/week (C), and Behavior lx60m/week (C).[2] The District also proposed placement in any DESE-approved public day, private day, or residential setting. Given Student’s specific needs and the limited schools available within the proximity of her home, the District explained that a residential placement may be required but agreed to send referral packets to private day schools within the proximity of the home.
The Team considered but rejected provision of extended day services as proposed by Student’s private service providers
In addition, via N1 dated October 23, 2023, the District offered Student a compensatory service plan which included 24 months of compensatory services from and after Student’s 22nd birthday and reimbursement for the Parents’ out-of-pocket expenses , upon receipt of appropriate documentation, for privately obtained educational services from November 2021 up to and including the date of the proposal.
On October 3, 2023, the Hearing Officer allowed Parents’ request to amend the Hearing Request to include issues regarding the newly proposed IEP and placement.[11]
On October 27, 2023, Parents filed Parents’ Amendment to Hearing Requests (Amendment) stating, in part, the following[12]

“The following issues were proposed in Parents’ Request for Accelerated Hearing, BSEA #24-01600 now consolidated with BSEA #23-11471 and Parents propose the following edits (underlined) and additions:
1. Whether Newburyport’s IEPs for the 2022-2023 and 2023-2024 school years, inclusive of all the facts, are reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment?
2. If Newburyport has not provided an IEP for the periods noted immediately above to the child, whether District acted with more than just negligence and/or inclusive of deliberate indifference in violation of Section 504 of the Rehabilitation Act?
3. Whether District was more than negligent and/or deliberately indifferent, the conscious or reckless disregard of the consequences of one’s acts or omissions, to the Student and Parent’s due process rights and the Student’s right to FAPE amounting to harm to Student and Family inclusive of the facts herein and not limited to the District: blatantly ignoring student’s unique needs and mental well-being, knowingly and continually providing an inadequate IEP and/or not providing an IEP at all to the detriment of Student’s FAPE, well-being and overall quality of life?
4. Whether the District’s actions or inactions, as the case may be, inclusive but not limited to this request amount to more than negligence as to invalidate the May 2022 Waiver of Claims and, if so, whether the 2021-2022 IEP, November 2021 amendment and subsequent amendments for the 2021-2022 school year were reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment and/or did or did not in fact provide FAPE to the Student causing harm to Student and Family?
5. Whether the District’s lack of actions in the 2022-2023 and 2023-2024 school years to provide Student with a FAPE [], determined to be more than negligent and/or deliberate indifference or not, amount to retaliatory action, including but not limited to, the factual history of this entire hearing request, that denied Student a FAPE?
6. Whether the District can be found credible inclusive of the facts, testimony and documentary evidence with regard to issues within the jurisdiction of the BSEA and, if found to be less than credible, harm was caused to Student and Family?
7. Whether the District’s repeated offer of a prospective residential placement in light of the U.S. Department of Education’s investigation into the Commonwealth’s [Department of Elementary and Secondary Education] DESE, recent Boston Globe Spotlight articles addressing abuse at residential placements and this hearing record, including but not limited to, the objections of Student’s medical providers and parents to a residential placement at this time, is appropriate to Student’s provision of a FAPE, safety, mental well-being and overall quality of life and/or does not violate the Parents’ Constitutional Rights?
8. Whether necessary steps should be taken (i.e. prior or continued observations, the level of transition supports necessary from current providers to next providers and other supports and services) to assure any next DESE approved placement the Student may be accepted to can in fact provide FAPE inclusive of Student’s IEP and the knowledge of what Student needs to be educated and/or whether an appropriate DESE day placement can be located so Student may continue to be supported by her Family, and/or an appropriate education program must be created?”[13]
In addition to the relief already requested, Parents requested “to add fees for the cost of litigation, not only including attorney’s fees but advocate fees, witnesses[’] fees (for those not subpoenaed) and any ancillary costs.”[14]

LEGAL STANDARDS:

Legal Standard for Motion to Dismiss

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. Pursuant to Rule XVII A and B of the Hearing Rules and 801 CMR 1.01(7)(g)(3), 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, which require the fact-finder to make a determination based on a complaint or hearing request alone.

To survive a motion to dismiss, there must exist “factual ‘allegations plausibly suggesting (not merely consistent with)’ an entitlement to relief.”^[15] 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.”^[16^] These “[f]actual allegations must be enough to raise a right to relief above the speculative level.”^[17]
Jurisdiction of the Bureau of Special Education

20 U.S.C. § 1415(b)(6) grants the Bureau of Special Education Appeals (BSEA) jurisdiction over timely filed complaints by a parent/guardian or a school district “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.”^[18] In Massachusetts, a parent or a school district, “may request mediation and/or a hearing at any time on any matter^[19] concerning the eligibility, evaluation, placement, IEP, provision of special education in accordance with state and federal law, or procedural protections of state and federal law for students with disabilities.”^[20]A parent of a student with a disability may also request a hearing on any issue involving the denial of the free appropriate public education guaranteed by Section 504 of the Rehabilitation Act of 1973….”^[21] However, the BSEA “can only grant relief that is authorized by these statutes and regulations, which generally encompasses orders for changed or additional services, specific placements, additional evaluations, reimbursement for services obtained privately by parents or compensatory services.”^[22]

BSEA jurisdiction extends to IDEA-based claims as well.^[²³^] The First Circuit held, in a case addressing exhaustion of claims filed under 42 U.S.C. § 1983, that the BSEA is not deprived of jurisdiction by the fact that certain claims are not based directly upon violations of the Individuals with Disabilities Education Act (IDEA), nor by the fact that the relief a complainant seeks cannot be awarded by the agency. The IDEA’s exhaustion requirement ensures that the BSEA is able to develop a factual record and apply its “specialized knowledge” in an IDEA-based claim.^[24]The IDEA’s exhaustion requirement “applies even when the suit is brought pursuant to a different statute so long as the party is seeking relief that is available under subchapter II of IDEA.”^[²⁵^] In Fry v. Napolean Community Schools, 137 S.Ct. 743, 752 (2017), the U.S. Supreme Court held that “exhaustion is not necessary when the gravamen of the plaintiff’s suit is something other than the denial of the IDEA’s core guarantee – what the Act calls a ‘free appropriate public education.’” Whether a claim is IDEA-based turns on whether the underlying claim is one of violation of the IDEA, or “where there are no factual allegations to indicate that a dispute exists concerning the individual student’s eligibility under the IDEA or Section 504 or the discharge of the School’s procedural and substantive responsibilities under the IDEA or [Section 504 of the Rehabilitation Act of 1973].”^[26]In a recent decision, Perez v. Sturgis Public Schools, 123 LRP 10045 (03/21/23), the Supreme Court ruled that Section 504 and ADA Title II claims for money damages are exempt from IDEA’s exhaustion requirement.
Mootness

Pursuant to both state and federal special education law, the BSEA has jurisdiction over “any matter relating to the identification, evaluation or educational placement of the child or the provision of a free and appropriate public education.”^[27] “Any matter” refers to a current, live dispute between the parties; the IDEA states that “a due process complaint must allege a violation…”^[28] Massachusetts law provides for hearings to resolve disputes.^[29]It is well established that matters that come before the BSEA must involve a live or current dispute between the Parties. ^[30]As such, the BSEA has no jurisdiction over a matter that is rendered moot because the underlying dispute has been resolved.^[31]
Ripeness

Similarly, just as the BSEA lacks jurisdiction over disputes that are moot, the BSEA cannot adjudicate disputes that may arise in the future but are not “ripe” (i.e., do not yet exist).^[32] The ripeness doctrine “asks whether an injury that has not yet happened is sufficiently likely to happen to warrant judicial review.”^[33] A claim is ripe “only if … the issues raised are fit for judicial decision at the time the suit is filed and … the party bringing suit will suffer hardship if court consideration is withheld.”^[34]

APPLICATION OF LEGAL STANDARDS:

After evaluating the District’s Motions under the LEGAL STANDARDS set forth supra, and taking the allegations in Parents’ Hearing Requests and Amendment to Hearing Request as true as well as any inferences that may be drawn from them in their favor,^{^[35]} I find that the District’s Motions are ALLOWED, in substantial part, and DENIED, in part. I address each claim below.

Claims Relative to a Denial of a FAPE or Violations of Section 504 for the 2022-23 and 2023-24 School Years (Issue #1, Issue #2, Issue #3, Issue #4, Issue #5, Issue # 6, and Issue #7).

Here, the District is seeking dismissal based on their offer which incorporates all of Parents’ requested relief. Specifically, the District has offered Parents 24 months of compensatory services to be provided following Student’s termination of eligibility at the age of 22, reimbursement for the Parents’ out-of-pocket expenses for privately obtained educational services from November 2021 to date, upon receipt of appropriate documentation, and a private day program within proximity to Parents’ home.

Parents argue that the District is neither offering “exactly the type of program” that they have requested nor is the District “offering relief inclusive of the relief requested and encompassing all concerns and issues acknowledged thus far to move forward to hearing.” Specifically, Parents assert that the “District still recommends residential placement” and that “[t]here is no DESE-approved placement identified for Student.” They content that

“[t]o dismiss due to ‘placement and compensatory’ services offers would deny Student complete relief that Student should be allowed to recover. The BSEA has the authority to provide relief, inclusive of a detailed list of procedural and substantial violations that are, unfortunately, increasing and becoming increasingly warranted considering the facts in the amended hearing request and District’s continued blind-eye to inclusivity of all the issues in this request.”

Moreover, in their Opposition #2, Parents appear to have altered their request for relief, asking, not for a DESE-approved private day program as they did in their Hearing Requests, but rather for a home-based program as a placement. Specifically, they assert:

“A DESE-approved day placement is questionable as well considering the facts of the hearing request and ongoing testimony. A DESE-approved public day placement is attractive to the Student and Family; Student is stabilized and healthy at home and the best way to continue such status is to keep Student at home and in her community. Equally, Parents refuse to set aside the tailored educational programming to their daughter’s unique needs that have shown to access their student’s mind for an education where other programs have failed.”

Parents’ argument is unpersuasive. Parents have requested an order requiring the District to create or locate a “brick and motor” day school program within proximity to their home, and the IEP and placement proposed for the period 10/11/2023 until 10/10/2024 reflects the District’s offer of a private day school program.[36] Although the N1 states that “[g]iven [Student’s] specific needs and the limited schools available within the proximity of her home, … a residential placement may be required,” the District’s proposal is, nevertheless, for a day program, just as the Parents requested in their complaints. The identification of a “DESE-approved placement” now depends on Parents’ cooperation. Thus, even taking all facts and inferences in Parents’ favor, I cannot find that the District has not proposed the relief Parents requested (albeit relief which they are now attempting to redefine).

Furthermore, in Hearing Request #2, Parents also requested for “an interim home-based program” meeting multiple criteria “given the harm Student endured from her last placement” and “timelines and benchmarks to hold the District accountable for their involvement in Student’s education and to protect Student’s right to a FAPE.” In Opposition #2, arguing that a “live controversy” exists as to placement for the 2023-2024 school year, they assert, “there is no interim program while [a placement] is identified or Student is on a waitlist. There is no action-oriented plan amidst District’s questionable oversight and credibility to take precautions to protect Student’s right and access to a FAPE, her health and safety.” Yet Parents claim for relief presumes the future occurrence of specific events and/or violations; an “interim program” may or may not be necessary. A “claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all that may not occur.”[37] The Hearing Officer would be unable to order relief based on a hypothetical situation or speculative need.

Arguing in their Opposition #2 that compensatory services is a “live controversy,” Parents appear to conflate their request for compensatory services with their request for attorneys’ fees and damages (pursuant to their negligence claim).[38] A Hearing Officer cannot order, as Parents seek, “fees for the cost of litigation, not only including attorney’s fees but advocate fees, witnesses[’] fees (for those not subpoenaed) and any ancillary costs.” It is well settled that “administrative hearing officers cannot award attorneys’ fees under the IDEA. When the parties resolve their dispute through administrative procedures, therefore, the prevailing party may bring an action in federal court solely to recover attorneys’ fees.”[39] The “IDEA only authorizes the courts, and not the administrative hearing officer, to award the attorneys’ fees.”[40]

In the same vein, the Hearing Officer cannot order reimbursement for the “ancillary costs” of litigation. As articulated by the Court in Burlington School Comm. v. Department of Education, 471 U.S. 359 (1985), the IDEA authorizes reimbursement for private expenditures on private special education, but such reimbursement is not the equivalent of damages; rather, reimbursement requires that the school “pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper IEP.”[41] In addition, to the extent that Parents wish to collect monetary damages for any alleged Section 504 violations, they need not exhaust administrative processes.[42]

It is compensatory services which Parents sought as relief in their Hearing Request, and which relief a Hearing Officer has jurisdiction to order. However, given the District’s offer in this matter, there is no further relief that I may order for the relevant time period. The District is correct that I am precluded from ordering compensatory services for any period during the pendency of the November 2021 IEP, as Parents had accepted said IEP, and the IEP was fully implemented. A Hearing Officer may not revisit a fully accepted and expired IEP[43], and Parents may not now dispute its appropriateness and seek compensatory services for the term of said IEP.^[44]

As such, I find that there is no live controversy regarding Issues # 6 and 7[45]; nor can Parents “avoid[] mootness [based] on ‘speculation’ about some future potential event,”[46] such as the unavailability of said placement and the need to “create” a program for Student.

Moreover, I find that to the extent that Issue # 5 addressing prospective placement was, pursuant to Parents’ October 27, 2023 Amendment to Hearing Requests, “edit[ed],” Issue # 6 in said Amendment addressing the substantive appropriateness of the IEP for the 2023-2024 school year supplanted Issue #5 as articulated in the original Hearing Request. Thus, where the Hearing on Issues # 6 and 7 has not yet begun, and Newburyport has offered Parents all the relief which Parents have requested with regard to Issues # 6 (supplanting Issue # 5) and 7 as part of their 10-day settlement offer,[47] there is no longer a live controversy to allow for BSEA jurisdiction over these claims. As such, claims relating to Issues # 5, 6, and 7 are DISMISSED WITH PREJUDICE.[48]

As the Hearing on Issues #1 through 4 began on August 7, 2023, prior to the District’s offer on October 23, 2023, and, given that Newburyport has not included attorney’s fees as part of said settlement offer, the issues which formed the basis of the Hearing which began in August 2023 have not been fully resolved and remain ripe for adjudication.[49]

Issues #1 through 4 SURVIVE DISMISSAL. Issues # 5, 6, and 7 are DISMISSED WITH PREJUDICE.

Tort Claim (Issue #8)

Parents assert that the “District was more than negligent and/or deliberately indifferent, [or exhibited] the conscious or reckless disregard of the consequences of one’s acts or omissions, to the Student and Parent’s due process rights and the Student’s right to FAPE amounting to harm to Student and Family inclusive of the facts herein and not limited to the District: blatantly ignoring student’s unique needs and mental well-being, knowingly and continually providing an inadequate IEP and/or not providing an IEP at all to the detriment of Student’s FAPE, well-being and overall quality of life.” They argue that the District’s “lack of oversight, action and indifference to Student are ‘causally connected’ to Student’s status as a student with a disability and in fact did cause harm.”

However, Parents incorrectly argue that the “BSEA has the authority to determine how negligent District was in their actions and/or inactions to provide Student a FAPE.”[50] The BSEA generally does not exercise jurisdiction over common law or statutory tort claims such as negligence or “educational malpractice.” [51] Specifically, the Hearing Officer has neither the statutory authority nor expertise to do what a court does in a negligence case, i.e., assess liability, (including contributory negligence), determine whether there was an injury, and, if so, assign a monetary value to this injury. Nor do I have jurisdiction over any claims for injuries to the family (emotional distress, lost wages, loss of consortium, etc.) The only parental claims that the statutes allow us to consider are for expenses incurred for unilateral placement or services or procedural violations that deprived parents of participation in the Team process.^{^[52]} As the BSEA has neither expertise in tort claims nor jurisdiction to order relief based in such laws,[53] this claim is DISMISSED WITH PREJUDICE.
Claim Relative to Settlement Agreement (Issue #9)

Parents assert that “the District’s actions or inactions, as the case may be, inclusive but not limited to this request amount to more than negligence [] invalidate[d] the May 2022 Waiver of Claims and, [seek a finding that] the 2021-2022 IEP, November 2021 amendment and subsequent amendments for the 2021-2022 school year were [not]reasonably calculated to provide Student with a free appropriate public education in the least restrictive environment [and] did not in fact provide FAPE to the Student causing harm to Student and Family.” The District asserts, in part, that the Hearing Officer previously dismissed parents’ Settlement Agreement claims. Specifically, the August 4, 2023 Ruling concluded that “Parents’ claims that the District failed to offer Student a FAPE during the 2021-2022 school year by failing to provide appropriate “supervision” over Legacy during that period [] were subject to Parents’ release of any and all claims prior to May 23, taking I take Parents’ allegations as true and draw all inferences in their favor as I am required to do, I could not offer them any relief for this claim.”

Parents, on the other hand, assert that the “BSEA has the authority to break the waiver of claims by its findings on the level of District’s negligence.” They argue that Issue #9 “was not previously dismissed in the instant case,” as “Parents have now submitted the new issue: if not for the waiver of claims, are Student’s issues for the 2021-2022 valid and subject to BSEA review, as further stated in Issue #9.” They also contend that they

“are requesting the BSEA consider the existence and scope of the agreement. The scope of the waiver of claims far exceeds the reasons the agreement existed: to resolve claims from and before September 2021; those claims were the actual claims addressed and resolved in the settlement. The claims from November 29, 2021 on did not exist within the May 2022 agreement and should not be within the scope of the waiver of claims in said agreement. To ignore that the waiver is outside the scope of the claims resolved in the May 2022 agreement would undermine legislative purpose and public policy as well as Parents and Student rights and future filings at the BSEA.”

They further assert that “there was no actual consent [to the agreement] as parents were not fully informed as to the knowledge that the District had already gained from the placement with regard to Student.”

Although Hearing Officers often “consider” settlement agreements and “their legal implications” in disputes before the BSEA[54], the BSEA generally does not exercise jurisdiction over disputes arising from contract law.[55] Nor can the Hearing Officer “invalidate” a fully executed settlement agreement,[56] or address an issue raised on speculation alone[57] (i.e., “if not for the waiver…).

Parents’ argument that they are merely “requesting [that] the BSEA consider the existence and scope of the agreement” is disingenuous. Parents contend that they did not provide “consent”[58] and that the “claims from November 29, 2021 on did not exist within the May 2022 agreement and should not be within the scope of the waiver of claims in said agreement” and ask the Hearing Officer to “invalidate” the waiver of claims. Such request requires an examination of the circumstances under which the agreement was executed[59] and an interpretation of the terms thereof, neither of which I have the authority to do.[60]

In addition, even if, arguendo, I could “invalidate” the waiver of claims in the Settlement Agreement and address whether the November 2021 IEP offered Student a FAPE, the claim would be dismissed as moot; specifically, the District has offered Parents reimbursement for their out-of-pocket expenses for privately obtained educational services from November 2021 to date, as requested by Parents, in addition to the 24 months of compensatory services also offered. As the District has offered all the relief which Parents sought, there is no other relief that the Hearing Officer could grant for said time period.

Therefore, this claim is DISMISSED WITH PREJUDICE.
Retaliation Claim (Issue #10)

In Hearing Request #1, Parents included as an issue for Hearing “Whether the District’s lack of action in Parent’s claims determined to be deliberate indifference or not, amount to retaliatory action given the number of procedures before the BSEA in most recent years and the harm to Student and Family?” This claim was dismissed in the August 4, 2023 Ruling on Newburyport Public Schools’ Partial Motion to Dismiss Claims on the grounds that

“The BSEA lacks jurisdiction over Parents’ claim of retaliation []. Not only is the BSEA limited in the relief it can offer and has no authority to order a ‘[n]on-retaliatory and non-discriminatory partnership with District to provide services to Student that District is legally required to provide Student until age 22’, but also Parents do not assert that their retaliation claim is connected to the provision of a FAPE to Student, and, as such, the BSEA has no jurisdiction over said claim. Therefore, this claim must be DISMISSED with prejudice.”[61]

In their Amendment, Parents again raise the issue of retaliation, framing it as follows: “Whether the District’s lack of actions in the 2022-2023 and 2023-2024 school years to provide Student with a FAPE [], determined to be more than negligent and/or deliberate indifference or not, amount to retaliatory action, including but not limited to, the factual history of this entire hearing request, that denied Student a FAPE?”

I note that Parents have been granted significant leeway to amend their claims in this matter. However, such leeway does not leave the door open to reintroduce issues previously dismissed with prejudice. Here, I find Parents’ attempt to reintroduce this previously dismissed issue by inserting the word “FAPE” into the recitation of the issue to be disingenuous.[62] Parents have introduced no facts alleging retaliation that resulted in a denial of a FAPE in Hearing Request #2 or in the Amendment.[63] This claim is DISMISSED WITH PREJUDICE. [64]
Credibility Claim (Issue #11)

Parents assert that the District should be found not “credible inclusive of the facts, testimony and documentary evidence with regard to issues within the jurisdiction of the BSEA and, if found to be less than credible, [then the Hearing Officer should find that] harm was caused to Student and Family.” This issue is improperly presented before the BSEA. Although a Hearing Officer is responsible for assessing the credibility of witnesses,[65] she has no authority to determine whether the credibility or lack thereof results in “harm.” This claim is DISMISSED WITH PREJUDICE.
Constitutional Rights Claim (Issue #12)

Parents assert that “the District’s repeated offer of a prospective residential placement in light of the U.S. Department of Education’s investigation into the Commonwealth’s DESE, recent Boston Globe Spotlight articles addressing abuse at residential placements and this hearing record, including but not limited to, the objections of Student’s medical providers and parents to a residential placement at this time, is [not] appropriate to Student’s provision of a FAPE, safety, mental well-being and overall quality of life and/or [] violate[s] the Parents’ Constitutional Rights.” The BSEA lacks specific statutory authority over, or expertise and experience in adjudicating constitutional claims, and constitutional claims are not claims for which relief is available under the IDEA.[66] Therefore, Parents’ claim relative to violations of constitutional rights must be DISMISSED WITH PREJUDICE .
Claim Relative to Supervision of DESE-Approved Placement (Issue #13)

Parents assert that “necessary steps should be taken (i.e. prior or continued observations, the level of transition supports necessary from current providers to next providers and other supports and services) to assure any next DESE approved placement the Student may be accepted to can in fact provide FAPE inclusive of Student’s IEP and the knowledge of what Student needs to be educated and/or [that] an appropriate DESE day placement can be located so Student may continue to be supported by her Family, and/or an appropriate education program must be created.” This issue is raised prematurely.

The fitness inquiry of the ripeness doctrine examines “whether the claim involves uncertain and contingent events that may not occur as anticipated or may not occur at all.”^[67] Here, Parents in essence seek relief upon facts that are not sufficiently developed and may never come to pass. The BSEA has jurisdiction over “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…”^[68] and may dismiss a Hearing Request for lack of subject matter jurisdiction.^[69] “[A]ny matter” refers to a current, live dispute between and/or among the parties, as a “due process complaint must allege a violation….”^[70] The BSEA provides “adjudicatory hearings, mediation and other forms of alternative dispute resolution…for resolution of disputes…,”^[71] and 603 CMR §28.08(3) states that the BSEA “shall conduct mediations and hearing to resolve … disputes.” Therefore, the BSEA has no “jurisdiction over matters in which no dispute or disagreement has arisen, even if a party anticipates a future dispute,”^[72] and a hearing may not proceed on upon facts that are not sufficiently developed and may never come to pass.^[73] Here, Parents argue that “[a]ny next DESE approved placement should be observed for academics, training, student cohort and so on before Student attends. Observations once Student attends her next placement should be ongoing and District should have the required oversight to provide a partnership in Student’s education.” They also assert that “there is nothing more live than a student at risk and a student at risk for further harm.” Nevertheless, the bottom line is that a new placement has yet to be identified; Student is not currently “at risk,” and raising the issue relative to supervision at this time is premature.[74]

The hardship inquiry of the ripeness doctrine centers upon “the hardship that may be entailed in denying judicial review,”^[75] and “whether the sought-after declaration would be of practical assistance in setting the underlying controversy to rest.”^[76] Although a “plaintiff must present evidence sufficient to satisfy both prongs of the test[,] … a very strong showing on one axis may compensate for a relatively weak showing on the other.”^[77] Here, Parents have failed to assert sufficient facts as to “hardship” resulting from a delay in their “the sought-after declaration.”

Even if I view the facts in the light most favorable to Parents, as I am required to do when considering a motion to dismiss,^[78] I cannot find that the matter is ripe for adjudication at this time.^[79] Where Parents’ claim relates solely to “contingent future events that may not occur as anticipated, or indeed may not occur at all,”^[80] adjudicating this issue at this juncture would be “an abstract and wasteful undertaking.”^[81] Therfore, this claim is DISMISSED WITHOUT PREJUDICE.

ORDER:

The District’s Motions are hereby ALLOWED, in substantial part, and DENIED, in part.

Specifically, Issues # 5, 6, 7, 8, 9, 10, 11, and 12 are hereby DISMISSED WITH PREJUDICE.

Issues # 1-4 SURVIVE DISMISSAL.

Issue # 13 is hereby DISMISSED WITHOUT PREJUDICE.

The Hearing scheduled to continue on November 8, 2023 will proceed on Issues #1-4 ONLY. As such, witnesses not included on the witness list 5 days prior to the start of the Hearing on August 7, 2023 and exhibits not entered into evidence on August 7, 2023 will not be allowed, unless granted permission by the Hearing Officer following a party’s motion thereto.

By the Hearing Officer:

/s/ Alina Kantor Nir

Alina Kantor Nir
Dated: November 4, 2023

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 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 statement of facts is prepared principally in order to rule on the District’s Motion to Dismiss.

[2] This agreement was in resolution of BSEA # 2205014.

[3] On May 18, 2023, the Director of the Bureau of Special Education Appeals (BSEA) determined that matter did not meet the standard for an accelerated hearing.

[4] These are the issues as identified by Parents in Hearing Request #1 and are reproduced here verbatim.

[5] This is the relief as identified by Parents in Hearing Request #1 and is reproduced here verbatim.

[6] These are the issues as identified by Parents in Hearing Request #2 and are reproduced here verbatim.

[7] This is the relief as identified by Parents in Hearing Request #2 and is reproduced here verbatim.

[8] See Ruling on Parents’ Motion to Consolidate and Newburyport Public Schools’ Response and Objection to the Parents’ Request for Expedited Hearing (Kantor Nir, August 28, 2023).

[9] The meeting was rescheduled to this date at Parents’ request.

[10] Summer services were recommended to prevent substantial regression of skills, and the N1 notes that these would be further discussed in the spring of 2024. The transition planning form was updated. Student continued to qualify for specialized transportation on a small vehicle with a monitor, nurse, and buckle cover.

[11] In the same Ruling, the Hearing Officer denied Parents’ request to maintain the initial filing date for statute of limitations purposes and to find that Crotched Mountain staff must attend the fall 2023 Team meeting.

[12] These are the issues as identified by Parents in Amendment to Hearing Requests.

[13] Internal citations omitted.

[14] According to Parents, Mother has been “admittedly drafting documents to keep costs down and has receipts for preparing hearing books.”

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

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

[17] Golchin v. Liberty Mut. Ins. Co., 460 Mass. 222, 223 (2011) (internal quotation marks and citations omitted).

[18] See 34 C.F.R. §300.507(a)(1).

[19] Limited exceptions exist that are not here applicable.

[20] 603 CMR 28.08(3)(a).

[21] See 29 U.S.C. 794 (Section 504 of Rehabilitation Act); 34 CFR 104.

[22] In Re: Georgetown Pub. Sch., BSEA # 1405352 (Berman 2014).

[23] See Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 59, 64 (1st Cir. 2002).

[24] Id. at 60.

[25] Rose v. Yeaw, 214 F.3d 206, 210 (1st Cir. 2000).

[26] In Re Xylia, BSEA # 12-0781 (Byrne 2012); see Diaz-Fonseca v. Puerto Rico, 451 F.3d 13, 29 (2006); Frazier, 276 F.3d at 64.

[27] See 20 U.S.C. §1415(b)(6)(A); 34 CFR §300.507(a); M.G.L. c71B, §2A(a)(i); 603 CMR §28.03.

[28] See 20 U.S.C. §1415(b)(6)(B); 34 CFR §507(a)(2).

[29] See 603 CMR §28.03.

[30] See In Re: Student v. Bay Path Reg’l Vocational Tech. High Sch., BSEA # 18-05746 (Figueroa, 2018).

[31] See In Re: Littleton Public Schools (Ruling on Parents’ Motion for Summary Judgment and School’s Motion to Dismiss), BSEA # 2009921 (Berman, 2020) (“In the context of a BSEA proceeding, a hearing request may be dismissed as moot if the party against whom the hearing request was filed grants all of the relief sought in the hearing request”); see also Nashoba Regional School District (Ruling), BSEA # 1906261 (Byrne, 2019) (where on the first day of hearing, the district offered an IEP with “the requisite substantive elements to permit an immediate parental decision and the associated school placement” which the parents had sought in the due process complaint, there was nothing for the hearing officer to award that the district was not already offering, making the case moot).

[32] See Johnson v. General Electric, 840 F. 2d 132, 136 (1st Cir. 1988) (“it is unwise to encourage lawsuits before the injuries resulting from the violations are delineated, or before it is even certain that injuries will occur at all”).

[33] Gun Owners’ Action League, Inc. v. Swift, 284 F.3d 198, 205 (1st Cir. 2002) (citation and internal quotation marks omitted).

[34] Labor Relations Div. of Constr. Indus. of Mass., Inc. v. Healey, 844 F.3d 318, 326 (1st Cir. 2016) (emphasis added) (citation and internal quotation marks omitted).

[35] Blank, 420 Mass. at 407.

[36] In Opposition #2, Parents also assert that in the recently proposed IEP, “the Behavior benchmarks, Student’s greatest area of need to maintain, list only two benchmarks. The Academic goal combines all academic benchmarks under one goal and does not attend to Student’s need for a challenging curriculum. These and other reviews on the IEP can be addressed at hearing.” However, Parents did not seek, in any of their requests for relief, specific goals for Student. Rather, in Hearing Request #2, they seek “[a] brick-and-mortar day placement, in a least restrictive environment with appropriately trained staff including but not limited to academic programming and behavior support/ABA services for Student’s unique needs to provide a FAPE to Student,” which is commensurate with the District’s proposal.

[37] See Texas v. United States, 523 U.S. 296, 299, 302 (1998) (Plaintiff’s claims was “too speculative [as to] whether the problem [] present[ed] will ever need solving” and hence “not yet fit for [the Court’s] consideration”); see also M.O. v. New York City Dep’t of Educ., 793 F.3d 236, 244 (2d Cir. 2015) (“challenges …cannot be based on mere speculation”).

[38] Parents’ argument is phrased in a convoluted and confusing manner. They assert that compensatory services are a “Live Controversy” as they had

“previously waived rights which waiver has evolved into a wall to complete recovery. Given the issues before the hearing officer, Parents are hesitant to waive any rights so that their Student and Family can have the relief that should be afforded. There are, unfortunately, very real negligence concerns here that can and have been repeated. To say that Parents were surprised that District would file a motion to dismiss for mootness would be facetious; Parents had just hoped District would act in a way that considered all their wrongdoings in the facts in the instant request and its pending amendment. Parents anticipated that with the District’s push to settle for compensatory services without attorney’s fees included in settlement as supported by case law, District would perceive that only placement to be at issue.”

The Hearing Officer struggles to understand or follow Parents’ argument but construes it to mean that as the Hearing on some of the issues in this matter began on August 7, 2023, the District should have known that Parents would not consider a settlement that does not include attorney’s fees.

[39] Zipperer v. Sch. Bd. of Seminole Cnty., Fla., 891 F. Supp. 583, 586 (M.D. Fla. 1995), vacated sub nom. Zipperer v. Sch. Bd. of Seminole Cnty., Fla., 111 F.3d 847 (11th Cir. 1997) (internal citations omitted) (vacated on other grounds); see In Re: Boston Public Schools (Ruling On Boston Public Schools’ Objections To Certain Of Parent’s Requests For Production Of Documents), BSEA # 2301267 (Mitchell, 2022) (“I am unable to issue any award of attorney fees”) (citing to 20 USC Sec. 1415(e)(3); 34 CFR Sec. 300.517(a); In Re: Springfield Public Schools, BSEA # 11-4290 (Berman, 2011); In Re: Lincoln-Sudbury Public Schools, BSEA # 11-2546 (Figueroa, 2010), and cases cited therein)).

[40] Bd. of Educ. of Oak Park v. Nathan R., 199 F.3d 377, 381 & n.10 (7th Cir. 2000) (internal citations and quotations omitted); see also R. M-G v. Bd. of Educ. for the Las Vegas City Schs., 645 F. App’x 672, 677 (10th Cir. 2016) (unpublished) (“The IDEA clearly allows the pursuit of a lawsuit solely to recover fees”).

[41] Burlington, 471 U.S. at 370-71.

[42] See Perez v. Sturgis Pub. Sch., 598 U.S. 142, 149–50 (2023) (“a suit [] premised on the past denial of a free and appropriate education may nonetheless proceed without exhausting IDEA’s administrative processes if the remedy a plaintiff seeks is not one IDEA provides”); see also Shefke v. Macomb Intermediate Sch. Dist., No. 22-1283, 2023 WL 3698219, at *1 (6th Cir. May 23, 2023) (“Fry, though, left open the question of whether IDEA exhaustion is required where a complaint is premised on the denial of a FAPE but seeks a remedy—monetary damages—that is not one the IDEA provides. The Supreme Court answered that question in Perez, holding that a plaintiff need not exhaust her administrative remedies under the IDEA if she seeks monetary damages, a form of relief the IDEA does not provide”).

[43] See, e.g., In Re: Blue Hills Regional Technical High School, BSEA # 2008213 (Figueroa, 2020) (it is well accepted that “once a fully accepted and implemented IEP has expired, hearing officers are precluded from re-visiting those IEPs so long as the parent had an opportunity to participate in the development of the IEP in question and received the notice of parental rights regarding IEP acceptance/rejection and dispute resolution options”); In Re: Student and Middleboro Public Schools (Ruling on Motion for Summary Judgment), BSEA #1908178 (Berman, 2019) (compensatory relief is not available for the periods corresponding to fully accepted, implemented, and expired IEPs); In Re: Sudbury Public Schools, BSEA # 05-4726 and # 05-4827 (Crane, 2005) (“the general and well-settled rule is that acceptance of an IEP precludes the Hearing Officer from considering its appropriateness”). I note that all claims relative to the November 2021 IEP were dismissed with prejudice in the August 4, 2023 Ruling.

[44] See In Re: Georgetown Pub. Sch., BSEA # 1405352 (Berman 2014) (Hearing Officer “can only grant relief that is authorized by these statutes and regulations, which generally encompasses orders for changed or additional services, specific placements, additional evaluations, reimbursement for services obtained privately by parents or compensatory services”); see also In Re: Longmeadow Public Schools, BSEA # 08-0673 (Crane, 2010) (where Parents have made no claim that their consent was “ineffective,” the “acceptance of an IEP precludes the Hearing Officer from considering its appropriateness…. Parents cannot, on the one hand, accept the IEP, thereby indicating that they agree with goals and objectives and the types and amounts of services reflected within that IEP, and then, at a later time after the IEP has been implemented, complain that the types and amounts of services accepted within the IEP should have included additional or different services or that the goals and objectives are inappropriate. In short, Parents cannot now dispute the appropriateness of the accepted portions of the IEP”).

[45] See In Re: Haverhill Public Schools (Ruling On School’s Motion For Partial Summary Judgment), BSEA # 2005314 (Berman, 2020) (“Neither courts nor the BSEA may render decisions where there is no live controversy between the parties such that the case becomes moot. In this case, Parent’s request for a day placement at NEPC became moot when Haverhill offered to provide that placement”) (internal citations omitted).

[46] Roe v. Healey, 78 F.4th 11, 23 (1st Cir. 2023).

[47] See 20 U.S.C. § 1415(i)(3)(D).

[48] See, e.g., Thomas R.W.. v. Massachusetts Dep’t of Educ., 130 F.3d 477, 479 (1st Cir. 1997) (In the absence of a live case or controversy, this case is moot and therefore, we lack jurisdiction to rule on the merits of appellant’s claim”); see Moseley v. Bd. of Educ. of Albuquerque Pub. Sch., 483 F.3d 689, 694 (10th Cir. 2007) (matter dismissed where student could not “articulate any equitable relief that would present a live controversy”); I.L. v. Tenn. Dep’t of Educ., 739 F. App’x 319, 323 (6th Cir. 2018) (quoting Fialka-Feldman v. Oakland Univ. Bd. of Trs., 639 F.3d 711, 713 (6th Cir. 2011)) (“If events occur during [an IDEA] case…that make it ‘impossible for the court to grant any effectual relief whatever to a prevailing party,’ the [case] must be dismissed as moot”); J.M. v. Tennessee Dep’t of Educ., 358 F. Supp. 3d 736, 748–49 (M.D. Tenn. 2018) (“Because ‘general money damages are not available under the IDEA,’ J.M. cannot rely on such damages to argue that his claims remain remediable”) (internal citations omitted); In Re: Littleton Public Schools (Ruling on Parents’ Motion for Summary Judgment and School’s Motion to Dismiss), BSEA # 2009921 (Berman, 2020) (“In the context of a BSEA proceeding, a hearing request may be dismissed as moot if the party against whom the hearing request was filed grants all of the relief sought in the hearing request”); In re: Ashburnham-Westminster R.S.D. v. Student (Ruling On Parents’ Motion To Dismiss), BSEA # 2303703 (Berman, 2023) (“Neither courts nor the BSEA may adjudicate matters where there is no live controversy between the parties such that the case becomes moot”).

[49] See In Re: Weston Public Schools (Corrected Ruling On Weston Public Schools’ Motion To Dismiss And Decision), BSEA# 2202541 (Figueroa, 2021) (“While in retaining counsel Parents must generally have an expectation of paying fees to obtain a desired result, here, Weston must have known that failing to make an offer of settlement at least 10 days before the Hearing per 20 USC 1415 (i)(3)(D)(i), inclusive of attorney’s fees would not fully resolve the dispute between the Parties. While well intended, Weston’s offer of settlement, which Parents rejected, was too little, too late, and left the door open for Parents to try their case before the BSEA, a forum that has jurisdiction over procedural and substantive violations of the IDEA and the Massachusetts Special Education Law. The dispute between the parties not having been fully resolved, Parents were entitled to proceed to Hearing”).

[50] Parents argue that the “District’s argument that tort claims are beyond the scope of the BSEA is false.” They refer to In re: Xylia, BSEA #12-0781 (Byrne 2012) and state that “references to the In re: Xylia ruling within this response, and Parents’ arguments in opposition to dismissing Issue #9 to equally oppose dismissing Issue #8.” It is unclear to this Hearing Officer how In re: Xylia supports Parents’ argument.

[51] See, e.g., Nieves-Marquez, 353 F.3d at 125 (the “IDEA’s primary purpose is to ensure FAPE, not to serve as a tort-like mechanism for compensating personal injury”); see also In Re: Norton Public Schools and Rafael (Ruling On School’s Motion To Dismiss), BSEA #1609348 (Byrne, 2016) (“All claims that purport to be common law torts, including claims of negligence and intentional infliction of emotional distress, are DISMISSED for lack of jurisdiction”); In Re: Georgetown Pub. Sch., BSEA # 1405352 (Berman 2014) (“[T]he BSEA has no particular expertise in the areas addressed in the instant case-assault and battery, violation of constitutional rights to bodily integrity, negligent supervision, loss of consortium, emotional distress, and violation of various civil rights statutes-either with respect to hearing and analyzing the facts surrounding the events themselves or in assessing the monetary value of any injuries that Parents might prove”); In re: Xylia, BSEA # 12-0781 (Byrne 2012) (concluding that the BSEA has no expertise in assessing claims of personal injury and correlating damages); In Re: Milton Public Schools (Ruling On Parents’ Motion For Partial Summary Judgment And Milton’s Motion To Dismiss), BSEA # 08-2284 (Crane, 2008) (“tort relief is not available under the state and federal special education statutes, and a tort claim [] is materially distinguishable from claims that could fall within the ambit of state and federal special education law. For these reasons, the IDEA’s requirement of exhaustion of the BSEA’s administrative remedies does not apply to a tort claim”); see also In Re: Masconomet Regional School District And Middleton Public Schools (Ruling On The Motion Of Middleton Public Schools To Dismiss), BSEA #07-7324 (Byrne, 2007) (“where assertions of educational malpractice have been considered in the context of special education disputes between parents and school districts, courts have uniformly rejected such claims as inconsistent with the IDEA’s comprehensive substantive and procedural regulation of rights, responsibilities and due process protections for students with disabilities”); In Re: Wareham Public Schools (Ruling), BSEA #00-0679 (Sherwood, 1999) (“Nowhere is there mention of issues regarding emotional distress, educational malpractice, etc., which would be claims for damages. And as to the scope of remedial authority, the Massachusetts regulations’ very explicit remedial authority makes no mention of money damages or punitive damages”); In Re: Inessa R. (Ruling on Motion to Dismiss), BSEA #95-3104 (Byrne, 1995) (“The first issue concerns the appellant’s allegations of educational malpractice and negligence over the course of the previous three years….Considering these facts in the light most favorable to the appellant I find that the Bureau of Special Education Appeals lacks jurisdiction to consider this issue as no identifiable special education dispute has been advanced”).

[52] See In Re: Georgetown Pub. Sch., BSEA # 1405352 (Berman 2014).

[53] See In Re: Milton Public Schools (Ruling On Parents’ Motion For Partial Summary Judgment And Milton’s Motion To Dismiss), BSEA # 08-2284 (Crane, 2008) (dismissing tort claims because the “state special education law pursuant to which the BSEA has authority to resolve special education disputes (MGL c. 71B) includes no tort remedy. Similarly, the federal special education statute (IDEA) does not include a remedy in tort”); In re: Natick Public Schools (Ruling On Parents’ Motion For BSEA Determination Of Jurisdiction To Award Monetary Damages), BSEA # 99-3852 (Belf-Becker, 2000) (“The federal Circuit Courts addressing the issue have concluded that compensatory and punitive damages are not available under the Individuals with Disabilities Education Act (IDEA). The courts reason that the structure of the IDEA and the Supreme Court’s decisions interpreting the IDEA do not support monetary damages as a form of relief”) (citing to circuit court cases).

[54] See In Re: Longmeadow School District (Ruling On Longmeadow’s Motion To Dismiss), BSEA # 07-2866 (Crane, 2006); see also In Re: Peabody Public Schools, BSEA # 96506 (Crane, 2009) (concluding that it is within the BSEA’s jurisdiction to review a settlement agreement reached through a settlement conference and consider its implications for Parent’s right to proceed to a hearing and determining, on the basis of the settlement agreement’s “clear and unambiguous language,” that the District had fulfilled its obligation).

[55] See, e.g., In Re: Triton Regional School District and Trevor, BSEA # 2105891 (Reichbach, 2021) (finding the need for inquiry into circumstances surrounding the negotiation of the settlement agreement is within the purview of a court with jurisdiction over contract disputes, and not the BSEA); In Re: Student v. Worcester Public Schools, BSEA # 1302473 (Putney-Yaceshyn, 2013) (finding “that the BSEA does not have authority to interpret or enforce the terms of private settlement agreements” and, at the same time, relying on the existence of a settlement agreement and its terms barring the re-opening of the matter to dismiss a case); In Re: Israel and Monson Public Schools, BSEA # 105064 (Byrne, 2010) (declining “to assert subject matter jurisdiction of a dispute that relates solely to the interpretation of a privately negotiated settlement agreement not incorporated into an IEP or BSEA order,” because, among other things, hearing officers lack experience and expertise in interpreting contract language and due to the very real possibility that the BSEA’s obligation to “enforce the public duties set out in the IDEA” would be inconsistent with enforcing, or otherwise endorsing, the terms of a privately negotiated settlement agreement).

[56] See 34 CFR 300.506 (b)(1); In re: Student v. Newburyport Public Schools (Ruling on Motion to Dismiss), BSEA # 2205014 (Putney-Yaceshyn, 2022) (“there has been consensus among BSEA hearing officers that the aforementioned statutes and regulations do not confer upon hearing officers the authority to interpret or enforce the terms of a private settlement agreement reached outside of the hearing process between parties involved in a BSEA hearing”).

[57] See, for example, E.E. v. New York City Dep’t of Educ., No. 13 CIV. 06709 LGS, 2014 WL 4332092, at *10 (S.D.N.Y. Aug. 21, 2014) (“Plaintiff’s claims regarding the potential inadequacies of P.S. 396K and P289K in their implementation of the IEP are impermissibly speculative and premature”).

[58] I further note that, at this juncture, allowing Parents’ claim to proceed on this claim “would undermine the integrity and efficacy of the settlement process.” In Re: Longmeadow Public Schools, BSEA# 07-2866 (Crane, 2008).

[59] See AccuSoft Corp. v. Palo, 237 F.3d 31, 40 (1st Cir. 2001) (explaining that intent of the parties is one factor in interpreting a settlement agreement).

[60] Parents also argue that “[s]hould the BSEA choose not to consider the scope of the waiver of claims in respect of the parties and the BSEA’s knowledge of what claims the agreement did resolve, it would necessitate filing a court of competent jurisdiction that does not have the expertise of the BSEA and require additional time and expense of all parties, all prejudicial to all parties.” However, as the issue relates to interpretation of contractual language, such as “the scope of the waiver of claims,” it is the Hearing officer who lacks expertise in the matter. See In re: Rafael & Norton Public Schools (Ruling on School’s Motion to Dismiss), BSEA # 16-09348 (Byrne, 2018) (“if the issue presented is purely one of contract law, Hearing Officers have uniformly determined that the BSEA does not have subject matter jurisdiction as it has no particular expertise in interpreting and applying contract law and has no authority to grant general contractual relief”) (internal citations omitted).

Parents’ argument that “[u]nder Massachusetts laws, a waiver cannot provide protection to a party for who or which has been more than just negligent in its actions or inactions [and that] public policy requires BSEA review and resolution” is equally unpersuasive. Specifically, Parents assert that “those facts [] in their [Hearing] request and this gross negligence and indifference on the part of the District is glaring and [is] showcased during testimony to date and waiver does not act to thwart such claims; it is in the best interest of the Student for BSEA to address this issue.” However, even if Parents are correct in their assessment of state law (which I decline to confirm or deny), there has not yet been any finding in this matter of negligence (nor, as discussed in this Ruling, is this a finding that I have authority to make), and as such, their argument must fail.

Moreover, Parents’ argument that this issue requires exhaustion fails as well; exhaustion “applies only when there is an administrative procedure authorized to consider the dispute in the first instance. Where none exists, or the administrative agency is not authorized to consider a particular type of dispute, the exhaustion requirement is not applicable and the parties may proceed directly to court.” In Re: Israel and the Monson Public Schools (Ruling on Motion to Dismiss), BSEA #10-5064 (Byrne, 2010). As stated supra, the Hearing Officer is not authorized to hear a dispute over the terms of a privately executed settlement agreement. Such disputes must be presented to a court of competent jurisdiction. As such, exhaustion is unnecessary relative to this claim. As stated by the Third Circuit in a case where “all claims related to the denial of a FAPE [were] released [via a settlement agreement],” exhaustion was unnecessary as there were “no claims to present to an administrative hearing officer and thus no claims to exhaust.” See Wellman v. Butler Area Sch. Dist., 877 F.3d 125, 135–36 (3d Cir. 2017).

[61] Internal citations omitted.

[62] See 137 S. Ct. at 755 (“The use (or [nonuse]) of particular labels and terms is not what matters” but rather what matters is the substance of the complaint); see also Graham v. Friedlander, 334 Conn. 564, 586 (2020) (“The court in Fry warned against this kind of ‘magic word’ approach”).

[63] See In re: Student v. Springfield Public Schools (Ruling on Springfield Public Schools’ Motion to Dismiss), BSEA # 2208440 (Kantor Nir, 2022) (“where Parent’s retaliation claim does not relate to Student’s evaluation or provision of special education services [, …] Parent’s claim of retaliation is not subject to the exhaustion requirement and must be dismissed for lack of jurisdiction”) (internal citations omitted); see also In re: Scituate Public Schools, BSEA # 2212423 (Putney-Yaceshyn, 2022) (dismissing with prejudice parent’s claims related to civil rights violations); In Re: Ollie v. Springfield Public Schools (Ruling on Springfield Public Schools’ Partial Motion to Dismiss), BSEA # 20-4776 (Reichbach, 2020) (concluding that that unless a claim of retaliation is tied to a FAPE claim, it is outside the jurisdiction of the BSEA).

[64] In addition, even if I did find that this claim, as revised in the Amendment to Hearing Requests, is IDEA-based, the claim would be dismissed as moot. There is no relief that I could grant for the alleged retaliation, other than, or in addition to, the compensatory services and reimbursement that the District already offered. As I already indicated, should Parents wish to pursue monetary damages pursuant to Section 504 for the alleged retaliation, they need not exhaust administrative processes. See Perez v. Sturgis Pub. Sch., 598 U.S. 142, 149–50 (2023).

[65] See Shore Regional High School Bd. of Educ. v. P.S., 381 F.3d 194 (3rd Cir. 2004).

[66] See Bowden ex rel. Bowden, 2002 WL 472293 at *5 (D.Mass. 2002) (finding that “IDEA exhaustion provision does not apply because the tort and constitutional claims are not claims for which relief is available in any sense under the IDEA,” and “[w]hile these claims are premised on the same alleged conduct, they do not allege a FAPE violation”) (internal citations omitted).); see also In Re: Chicopee Public Schools and Massachusetts Department of Elementary and Secondary Education (Ruling on Motion to Dismiss), BSEA # 1608986 (Berman, 2016) (dismissing 14th Amendment claim for lack of subject matter jurisdiction); see also In re: Dracut Public Schools (Ruling On Dracut Public Schools’ Motion To Dismiss The Parent’s Request For Hearing And On Parent’s Motion For Counsel’s Recusal), BSEA # 2312210 (Kantor Nir, 2023) (dismissing Constitutional claims).

[67] Id. at 299.

[68] 20 USC §1415(b)(6)(A); 34 CFR §300.507(a)(1); MGL c. 71B, §2A(a)(i); 603 CMR §28.08(3).

[69] See Hearing Rules for Special Education Appeals, Rule XVIIB(1) and 801 CMR 1.01(7)(g)(3). These provisions are analogous to Rule 12(b)(1) of the Federal and Massachusetts Rules of Civil Procedure.

[70] 20 USC §1415(b)(6)(B); 34 CFR §507(a)(2).

[71] MGL c. 71B, §2A(a)(i)

[72] In Re: Reading Public Schools (Ruling on Reading Public Schools’ Motion to Dismiss), BSEA # 1706923 (Berman, 2017) (parents could not dispute the appropriateness of an IEP that was yet to be drafted).

[73] See Johnson v. Gen. Electric, 840 F. 2d 132, 136 (1st Cir. 1988) (“It is unwise to encourage lawsuits before the injuries resulting from the violations are delineated, or before it is even certain that injuries will occur at all”); see also In Re: Division of Administrative Law Appeals [Edward McGrath in his capacity as Chief Magistrate] & Bureau of Special Education Appeals [Reece Erlichman in her capacity as Director, Sara Berman in her capacity as Hearing Officer] (Ruling on the Division of Administrative Law Appeals’ & Bureau of Special Education Appeals’ Joint Motion to Dismiss), BSEA # 2303901(Figueroa, 2022) (“Parent’s claims must be ripe before she may raise them at the appropriate time in the appropriate forum”).

[74] See, for example, E.E. v. New York City Dep’t of Educ., No. 13 CIV. 06709 LGS, 2014 WL 4332092, at *10 (S.D.N.Y. Aug. 21, 2014) (“Plaintiff’s claims regarding the potential inadequacies of P.S. 396K and P289K in their implementation of the IEP are impermissibly speculative and premature”).

[75] Ernst & Young v. Depositors Econ. Prot. Corp., 45 F.3d 530, 536 (1st Cir. 1995).

[76] Town of Barnstable v. O’Connor, 786 F.3d 130, 143 (1^st Cir. 2015)

[77] NEGB, LLC v. Weinstein Co. Holdings, LLC, 490 F.Supp.2d 89, 95 (D. Mass. 2007)

[78] See Blank, 420 Mass. at 407.

[79] Labor Relations Div. of Constr. Indus. of Mass., Inc., 844 F.3d at 326 (emphasis added); see Reddy v. Foster, 845 F.3d 493 (1 st Cir. 2017) (finding that the action was not ripe for adjudication where the complaint “claims only that the plaintiffs ‘fear prosecution under the Act’ [and] [n]owhere does the complaint allege that the demarcation of a zone is imminent or that prosecution will occur without that precondition first having been satisfied”).

[80] Texas v. United States, 523 U.S. at 299.

[81] Nat’l Park Hosp. Ass’n v. Dep’t of Interior, 538 U.S. 803, 807–08 (2003) (citing Abbott Laboratories v. Gardner, 387 U.S. 136, 148–149 (1967)) (The ripeness doctrine is designed “to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties”).

Updated on November 8, 2023

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