COMMONWEALTH OF MASSACHUSETTS
DIVISION OF ADMINISTRATIVE LAW APPEALS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Student v. Newburyport Public Schools
BSEA # 2311471, 2401600
RULING ON PARENTS’ MOTION TO AMEND HEARING REQUEST AND MAINTAIN HEARING DATES
This matter comes before the Hearing Officer on Parents’ Motion to Amend the Hearing Request and Maintain Hearing Dates (Motion) filed on September 22, 2023 seeking “to amend the hearing request while keeping the dates of the hearing in progress and continued to November 8, 17, and 20, 2023.” Specifically, they argue that although “new facts including the forthcoming IEP meeting scheduled for September 28, 2023 and proposed IEP and placement, and documents to support these facts, may require amending the hearing request[,] Petitioners move that these facts will clarify issues and the date of the original hearing request shall be controlling for statute of limitations purposes.” Parents further assert that
“[a]n IEP meeting has been confirmed for Thursday, September 28 at 12PM. The District provided an invite with District staff; no District staff on the invite has met, observed, worked with or evaluated Student. Parents have confirmed that Student’s Advocate, Education Consultant, Psychotherapist, Speech Therapist and Board Certified Behavior Analyst (BCBA) can attend. The Occupational Therapist was not available. In addition, Parents have requested Legacy staff be invited as Student’s last agreed upon placement/stay-put placement. The District has refused to invite Crotched Mountain/Legacy.… Pending agreement on the invitees for Student’s IEP Meeting, the much-needed and much-overdo meeting should go forward.”
On September 29, 2023, Newburyport Public Schools (Newburyport or the District) filed
Newburyport Public Schools’ Response And Partial Objection To The Parents’ Motion To Amend Hearing Request And Maintain Hearing Dates (Objection) objecting “to the Parents’ characterization of their second hearing request as merely a ‘clarification’ of their first hearing request” as “Parents’ second hearing request sets forth substantive FAPE arguments clearly not raised in the Parents’ first hearing request, nor raised following the Hearing Officer’s request for clarification of the issues prior to the first day of testimony, nor raised until two (2) full days of hearing on the merits of the Parents’ claims set forth in their first hearing request. As such, and as a matter of law, the date of the first hearing request is not controlling for the statute of limitations as to the second hearing request.” However, the District “has no objection to maintaining the established hearing dates of November 8, 17, and 20, 2023 because these hearing dates are consistent with the IDEA’s statutory requirements for amended hearing requests and the BSEA Hearing Rules.” The District further contends that it has discretion to identify and invite IEP Team Meeting participants and, as such, Parent’s request that the “BSEA [] intervene and substitute its judgment for the District’s discretionary decision-making authority is impermissible as a matter of law.”[1]
On October 3, 2023, Parents filed Parents’ Answer To District’s Response And Partial Objection To The Parents’ Motion To Amend Hearing Request And Maintain Hearing Dates, requesting, in part, that that the Hearing Officer
“allow [the amendment of] the hearing request for District’s recently requested IEP meeting and anticipated proposed IEP to be included in the record for the purposes of the upcoming hearings; Student should not be further harmed due to District’s continued delay for the hearing. Additionally, Parents request BSEA # 2311471 should be controlling as to the statute of limitations for this ongoing hearing. Parents further request the stay-put placement as Student’s last physical school setting should have been and should be lawfully invited to Student’s IEP meeting and this invite is not at the District’s discretion. Lastly, no issues to this hearing should be dismissed as the BSEA has authority and expertise on these issues; the District’s more than just negligence is not just evident but blatant in these facts of the consolidated request.”
Neither party has requested a hearing on the Motion. Because neither testimony nor oral argument would advance the Hearing Officer’s understanding of the issues involved, this Ruling is issued without a hearing, pursuant to Bureau of Special Education Appeals Hearing Rule VII(D).
For the reasons articulated below, the Motion is ALLOWED, in part, and DENIED, in part.
RELEVANT FACTS AND PROCEDURAL HISTORY:
The following facts are not in dispute and are taken as true for the purposes of this Ruling. These facts may be subject to revision in subsequent proceedings.
- Student is a 15-year-old resident of Newburyport, Massachusetts, who is diagnosed with Autism Spectrum Disorder, Epilepsy, and Attention Deficit Hyperactivity Disorder (ADHD).
- Student is currently receiving home-based non-educational services through insurance subsequent to her unilateral removal by Parents from her placement at Legacy by Gersh/Crotched Mountain (hereinafter, Legacy or Crotched Mountain) in July 2022. Student had been placed at Legacy by the District on November 29, 2021, pursuant to a fully accepted IEP.
- On May 18, 2023, Parents filed a Hearing Request in the instant matter (Hearing Request #1) (BSEA # 2311471) which proceeded to Hearing on August 7 and 8, 2023 on the following issues[2]:
- 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?
- 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?
- 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?
- If the answer to either/and/or (a), (b) and (c) is in the affirmative, what is the appropriate remedy? and,
- 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 # 2311471 was scheduled to continue on November 8, 17 and 20, 2023.
- 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 15, 2023, Parents filed another Hearing Request[3] (Hearing Request #2), BSEA # 2401600.
- On August 28, 2023, the undersigned Hearing Officer consolidated BSEA # 2311471 and BSEA # 2401600.[4]
- An IEP Team meeting has been scheduled for September 28, 2023.
- On September 22, 2023, Parents filed the instant Motion.
LEGAL STANDARD:
The Individuals with Disabilities Education Act (IDEA) requires the party initiating a due process hearing to file a complaint and provide notice of this complaint to the other party and the state educational agency. In part, the complaint must include a description of issue(s), including facts relating to such issue(s) and a proposed resolution to the dispute, to the extent known and available to the party at the time.[5] This provides the opposing party with notice as to the issues for hearing.
BSEA Hearing Rule I(G) allows the moving party to amend the Hearing Request under two circumstances:
“1. In response to a Hearing Officer’s determination that a hearing request is insufficient, as described in E, above, the moving party may file an amended hearing request within fourteen (14) calendar days of the date of the Hearing Officer’s determination.
2. If the other party consents in writing, or the Hearing Officer grants permission. (The Hearing Officer may not grant such permission later than five (5) calendar days before the start of the hearing.)”
BSEA Hearing Rule I(G) further states that whenever a Hearing Request is amended, new timelines for the entire process are thereafter calculated, as if the amended hearing request were a new request. The Rule also identifies that to the extent the amendment merely clarifies issues raised in the initial hearing request, the date of the initial hearing request shall be controlling for statute of limitations purposes. For issues not included in the original hearing request, however, the date of the amended hearing request shall be controlling for statute of limitations purposes.[6]
APPLICATION OF LEGAL STANDARD
In the instant matter, in light of the District’s agreement to allow Parents to amend the Hearing Request and add the additional issues that may arise from the September 2023 IEP Team Meeting to the Hearing already scheduled to continue on November 8, 2023, I find that no undue prejudice will result by allowing Parents’ Motion at this time.[7] However, because Parents’amendment (as did Parent’s Second Hearing Request) willundoubtedlyraise a new issue (or issues) for hearing relative to the newly proposed IEP and placement, and such issue(s) would not merely clarify prior asserted claims, the date of the initial hearing request is not controlling for statute of limitations purposes.[8] Therefore, the Parents’ Motion is ALLOWED as to amending the Hearing Request and proceeding on the additional claims on the already scheduled Hearing date of November 8, 2023, and DENIED as to maintaining the initial filing date for statute of limitations purposes.
In addition, to the extent that Parents are seeking the Hearing Officer’s finding that Crotched Mountain staff must attend the Team Meeting, I am unable to make such a finding at this time. Attendance at Team meetings is an important element of, and requirement for, developing an IEP.[9] Relevant federal regulations require that the school district or state ensure that the IEP Team includes the following individuals: at least one of the child’s regular education teachers (if the child is, or may be, participating in the regular education environment); at least one of the child’s special education teachers, or, where appropriate, at least one of the child’s special education providers; a qualified and knowledgeable public agency representative; an individual who can interpret the instructional implications of evaluation results, who may be one of the team members listed above; the child’s parents; where appropriate, the child with a disability; and, at the discretion of the parent or the agency, other individuals who have knowledge or special expertise regarding the child.[10] The party inviting individuals with such knowledge or special expertise determines whether those individuals possess that knowledge or expertise.[11] Whether Crotched Mountain staff are mandatory members of the Team is a question of fact that requires a Hearing on the merits. Therefore, Parents’ request is DENIED.
CONCLUSION AND ORDER
For the reasons articulated above, Parents’ Motion is ALLOWED, in part, and DENIED, in part.
In addition, the matter will proceed as follows:
- Supplemental Exhibits and witness lists are due at by the close of business day October 31, 2023. Please send them to the Hearing Officer at [address].
- Per the agreement of the parties, Wesley Pierce will testify on November 17, 2023.
So Ordered by the Hearing Officer,
/s/ Alina Kantor Nir
Alina Kantor Nir
Dated: October 3, 2023
[1] Newburyport also denied “that it has been negligent in any aspect of this matter” and asserts that to the extent “that the Student is ‘without a FAPE,’ it is the direct consequence of the Parents’ ongoing obstruction of the District’s ability to make formal referrals to potentially appropriate programs. The BSEA has no expertise or jurisdiction to decide negligence claims.” Newburyport’s Objection notes that “it intends to file a Partial Motion to Dismiss on claims raised in the Parents’ second hearing request. The District still anticipates doing so before the first day of hearing on the amended hearing request.” As such, this Ruling will not address this issue.
[2] See Ruling on Newburyport Public Schools’ Motion to Dismiss (Kantor Nir, August 4, 2023).
[3] 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.
[4] 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).
[5] See 34 CFR 300.508(b).
[6] BSEA Hearing Rule I(G).
[7] See 801 CR 1.01(6)(f) and Acosta-Mestre v. Hilton Int’l of Puerto Rico, Inc., 156 F.3d 49, 52 (1st Cir. 1998).
[8] See BSEA Hearing Rule I(G).
[9] A mandatory member of the IEP team is not required to attend an IEP team meeting, in whole or in part, if the parent and the district agree, in writing, that the member’s attendance is not necessary because the member’s area of the curriculum or related services is not being modified or discussed in the meeting. See 34 CFR 300.321 (e)(1). In the present matter, Parents did not excuse any Crotched Mountain staff member from attending and, in fact, advocated for their attendance.
[10] See 34 CFR 300.321(a).
[11] See 34 CFR 300.321(c).