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 # 2311471, 2401600

RULING ON 

PARENTS’ MOTION TO CONSOLIDATE 

AND 

NEWBURYPORT PUBLIC SCHOOLS’

 RESPONSE AND OBJECTION 

TO THE PARENTS’ REQUEST FOR EXPEDITED HEARING

This matter comes before the Hearing Officer on Parents’ Motion to Consolidate (Motion to Consolidate) filed on August 16, 2023 seeking to consolidate BSEA # 2311471, a case filed on by Parents against Newburyport Public Schools (NPS or the District) on May 18, 2023, with a case filed by Parents on August 15, 2023 against the District, BSEA # 2401600.  On August 21, 2023, the District filed Newburyport Public Schools’ Response and Objection to the Parents’ Request for Expedited Hearing (Objections), asserting, in part, that BSEA Matter No. 2401600 fails to meet the standard for either expedited or accelerated status.

As testimony or oral argument would not advance the Hearing Officer’s understanding of the issues involved, this Ruling is being issued without a hearing, pursuant to Bureau of Special Education Appeals Hearing Rule VII(D). [1]

For the reasons set forth below, Parents’ Motion to Consolidate is ALLOWED.  The District’s objection to the accelerated status is DENIED. However, in light of Parents’ withdrawal of the matter from the accelerated track, the matter will proceed along with the remaining issues.

FACTUAL BACKGROUND AND RELEVANT PROCEDURAL HISTORY [2]:

1. Student is a 15-year-old resident of Newburyport, Massachusetts, who is diagnosed with Autism Spectrum Disorder, Epilepsy, and Attention Deficit Hyperactivity Disorder (ADHD).
2. 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
3. Prior to said placement, on September 2, 2021, the parties participated in a mediation relative to past payment for a home-based program and prospective placement. The parties executed an agreement relative to September 2021 only, and referral packets were sent to proposed day placements.
4. The parties agree that Legacy is Student’s “stay-put” placement.
5. While at Legacy, Student’s behaviors increased, as did instances when Student sustained injuries from other students.
6. On May 13, 2022, the Team convened for an annual review, and the District proposed an IEP designating Legacy as the placement. The District endorsed a residential placement for Student based on the Team’s recommendations. Parents requested a day program. The Team agreed to reconvene in July 2022 to discuss  Student’s transition to a residential program in the fall of 2022.
7. Following the Team meeting, the District proposed an IEP dated 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.
8. 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. [3]
9. On May 31, 2022, Parents proposed an independent BCBA observation, to which the District agreed. On June 23, 2022, Parents sent the District the independent BCBA report. 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.
10. On July 8, 2022, a mediation was scheduled for July 26, 2022. At Parents’ request the mediation was postponed due to a change in staffing in Newburyport’s central office.
11. In the fall of 2022, the District reaffirmed that it would provide Student with her “stay put” placement. The District also offered to send formal referral packets to May Center, Melmark, and New England Center for Children (NECC). Parents consented to referral packets for Melmark and NECC.
12. On October 5, 2022, the parties participated in a mediation, which did not result in resolution of the issues in dispute.
13. From July 2022 to December 2022, Student was provided with BCBA support and a 1:1 aide, in order to provide some educational services not covered by insurance ,for a maximum of 12 hours/week when staff was available, this at cost to Parents. Parents also taught Student until October 2022, limited to fill-in services while ABA services increased due to provider availability.
14. In January 2023, Student’s insurance began to cover Student’s ABA services so that Parents were no longer incurring the expense of BCBA/ABA support. All ABA services were provided at home with a parent present at all times, as required by insurance.
15. On January 24, 2023, a Team meeting was held to review the June 2022 BCBA Observation Report. Staff from Student’s stay-put placement (now, as a result of a change of management and ownership, Seven Hills) were not present. According to Parents, the District did not allow the author of the BCBA observation report to complete her narrative and recommendations at the meeting.
16. On March 3, 2023, Parents sent an Authorization for Release of Information to day placements that could transition Student to residential setting in the future. As such, Parents were seeking and agreeable to day placement options within commuting distance of Student’s home. Parents also requested permission to review the referral packets. To date, Parents have not received an update from Newburyport on responses to these packets.
17. On May 18, 2023, Parents filed a Hearing Request in the instant matter [4] (Hearing Request #1) (BSEA # 2311471) asserting the following issues for Hearing [5]:  

1. 1. Whether District failed in oversight to provide a 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 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, 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 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?
      

18. Parents sought the following relief [6]:

• • Non-retaliatory and non-discriminatory partnership with District to provide services to Student that District is legally required to provide Student until age 22;
  • An interim home-based program supported by District inclusive of staff and adequate funding for Student until a permanent day placement can be found;
  • A brick-and-mortar day placement, a least restrictive environment with appropriately trained staff including behavior support/ABA for Student’s unique needs;
  • 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;
  • A declaration of procedural and substantive violations in this matter; and
  • 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 Depravation of Rights, 42 U.S.C. §1983, The Fourteenth Amendment, and applicable contract law.
    
    19. 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 IEP20.Student is without an IEP for the 2023-2024 School Year.21.On August 1, 2023, the District filed Newburyport Public Schools’ Motion to Dismiss certain claims.

    22.On August 4, 2023, the undersigned Hearing Officer issued Ruling on Newburyport Public Schools’ Motion to Dismiss, 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?

23. 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 and 20, 2023.

24. On August 15, 2023, Parents filed a Hearing Request [7] (Hearing Request #2), BSEA # 2401600, seeking expedited status and asserting the following issues for Hearing [8]:

1. 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 [9]:

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 Depravation of Rights, 42 U.S.C. §1983, The Fourteenth Amendment, and applicable contract law.

25. 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.

26. On August 15, 2023, Parents filed the instant Parents’ Motion on the grounds that

“[g]iven the timelines prescribed for expediated[sic] hearings, the Petitioner asks that the Supplemental Hearing Request hearing take place on the hearing dates assigned to the Original Hearing Request, being three days in November 2023.  It should be noted that extensive discovery on any and all matters addressing both the Original Hearing Request and Supplemental Hearing Request have been tendered and answered, leaving no discovery to be conducted. Pursuant to the regulations applicable, the facts of the matters to be consolidated are common and there are common issues.  These matters are ripe for consolidation.”

27. On August 21, 2023, Newburyport filed its Objections, asserting, in part, that

“Parents’ Request for Expedited Hearing, dated August 15, 2023, is not a separate or “new” hearing request. Rather, Hearing Request #2 is a transparent attempt by the Parents to circumvent the Hearing Officer’s final ruling on the issues in dispute after two (2) full days of hearing in the matter of BSEA No. 2311471 (“Hearing Request #1” or “HR #1”). As a matter of law, the Parents are precluded from amending their hearing less than five (5) calendar days before the start of the hearing. 20 U.S.C. § 1415(f)(3)(B) and BSEA Hearing Rule I(G).  To permit the Parents to do so would amend the BSEA hearing rules and the IDEA, undermine the BSEA’s authority and final decision-making, severely prejudice the District’s defense and presentation of its case, and needlessly cause the District to incur unnecessary legal expenses.”

28. On August 28, 2023, Parents withdrew their request for an accelerated Hearing.

LEGAL STANDARDS AND DISCUSSION:

I. Expedited and Accelerated Hearings

1. Legal Standards.

Pursuant to BSEA Hearing Rule II(C)(1), a matter may be granted expedited status under the following circumstances only:

“Student Discipline: Hearings involving discipline are scheduled on an expedited timeline consistent with federal IDEA regulations. Expedited status will be granted:

1. 1. • when a parent disagrees with a school district’s determination that the behavior leading to discipline was not a manifestation of the student’s disability; or
      • when a parent disagrees with a school district’s decision regarding a student’s placement in the discipline context; or
      • when a school district asserts that maintaining the current placement of the student during the pendency of due process proceedings is substantially likely to result in injury to the student or others.”

BSEA Hearing Rule II(D)(1) states that accelerated status may be granted in the following circumstances:

“Hearings may be assigned accelerated status in the following situations:

• When the health or safety of the student or others would be endangered by the delay; or
• When the special education services the student is currently receiving are sufficiently inadequate such that harm to the student is likely; or
• When the student is currently without an available educational program or the student’s program will be terminated or interrupted immediately.”

2. Application of Legal Standards.[10]

After applying the principles set forth above to the matter before me, I find that the District’s objection to the accelerated status granted Hearing Request # 2 is hereby DENIED. Newburyport asserts that accelerated status should not have been granted, in part or in whole, for accelerated status, because

“[t]o the extent that the Student is without a District-provided educational program, it is the direct consequence of the Parents’ unilateral decision to withdraw the Student from her last agreed upon placement and refusal to consent to releases to viable DESE approved schools. The District has a long-standing offer to place the Student in any DESE approved day or residential program of the Parents’ choosing. The Parents, however, have only consented to referrals to “day placements only” that are “within commuting distance only.” No such DESE approved day schools satisfying the Parents’ criteria exists.” [11]

Even if, as Newburyport asserts, Parents’ actions have contributed to the current situation, the facts, as presented in Hearing Request #2, suggest that in May 2023 Student’s IEP had expired, and the Team did not convene to develop and propose a new IEP. As such, the complaint meets the standard for accelerated hearing pursuant to BSEA Hearing Rule II(D)(1)(c). [12]  However, as Parents withdrew their request for an accelerated hearing on August 28, 2023, the matter will proceed on the regular track along with the remaining claims.

II. Consolidation

1. Legal Standards.

a. Filing a Hearing Request and Amending the Hearing Request

BSEA Hearing Rule I(B) states that a Hearing Request must state, in part, the nature of the disagreement, including facts relating to such disagreement and the proposed resolution of the disagreement to the extent known and available to the party at the time. In addition, according to BSEA Hearing Rule I(B), the party requesting a hearing shall not be allowed to raise issues at the hearing that were not raised in the hearing request unless the other party agrees or the hearing request is amended in accordance with state and federal law. BSEA Hearing Rule I(G) governs amendments. Specifically, it provides, in part, that the moving party may amend the hearing request under two circumstances if the other party consents in writing, or the Hearing Officer grants permission, and that the Hearing Officer may not grant such permission later than five (5) calendar days before the start of the hearing.

b. Consolidation

Although the Hearing Rules do not specifically address motions to consolidate, pursuant to 801 CMR 1.01(7)(j), where multiple proceedings involve “common issues,” the Hearing Officer may consolidate them “with the concurrence of all parties and any other tribunal that may be involved.”

In addition, although not bound by the rules of civil procedure, Hearing Officers are often guided by these rules. Pursuant to Rule 42 of both the Massachusetts and the Federal Rules of Civil Procedure, “If actions before the court involve a common question of law or fact, the court may: (1) join for hearing or trial any or all matters at issue in the actions; (2) consolidate the actions; or (3) issue any other orders to avoid unnecessary cost or delay.” [13] The Hearing Officer must decide whether the “balance of considerations favors consolidation.” [14]

2. Application of Legal Standards

After applying the principles set forth above to the matter before me, while balancing the need for administrative efficiency, I find that Parents’ Motion to Consolidate must be ALLOWED. I address the District’s objections below.

The District asserts that Parents should not be allowed to raise the additional issue relating to the denial of substantive FAPE during the 2022-2023 school year as part of the currently ongoing Hearing, because the Hearing Officer’s Ruling on the District’s Partial Motion to Dismiss is final; specifically,

“[o]n August 4, 2023, the Hearing Officer issued a fifteen (15) page Ruling on the Newburyport Public Schools’ Partial Motion to Dismiss Claims. The Ruling included a two (2) page statement, Effect of Final BSEA Actions and Rights of Appeal indicating that a BSEA ruling on motion to dismiss is ‘final.’

Parents failed to raise any objection, nor even ask for clarification of the Hearing Officer’s Ruling at the time it was issued on August 4, 2023. Moreover, the Parents failed to raise any objection or request clarification on the issues to be decided at the outset of BSEA No. 2311471. On the morning of August 7, 2023, when the Hearing Officer read the issues to be decided into the record and asked if anyone had any questions, Parents’ counsel had none….

… Parents had months to amend their original hearing request and assert a claim that the Student was denied a free appropriate public education (FAPE) on substantive grounds. They simply failed to timely do so. No party should be encouraged nor permitted to circumvent a final decision on a Motion to Dismiss by belatedly raising claims under the auspices of a fresh hearing request for the sole purpose of circumventing the Hearing Officer’s Ruling with which they are newly enlightened and now disagree.  Moreover, it is entirely inappropriate for the Bureau to issue a final decision on the issues in dispute, only to encourage and subsequently allow one party to circumvent that very decision, to the detriment of another party and in violation of the IDEA and BSEA Hearing Rules.”

The District’s argument that Hearing Request #2 is a pretext to amend the currently pending Hearing Request is unpersuasive. Although Parents may not amend the Hearing Request once a Hearing on the merits has begun [15], they maintain the right to file a new hearing request [16] on any issues not previously dismissed at any time, one which would be assigned its own timeline in accordance with the BSEA Hearing Rules. [17]

Parents listed 8 issues for Hearing in Hearing Request #1, but these did not include the issue of a denial of substantive FAPE for the 2022-2023 school year. Thus the August 4, 2023 Ruling on Newburyport Public Schools’ Partial Motion to Dismiss Claims did not dismiss any claim relative to the provision of substantive FAPE for the 2022-2023 school year, but rather only that relating to the 2021-2022 school year. Nor has such claim expired pursuant to the statute of limitations. Nevertheless, the District is correct that the issue of substantive FAPE for the 2022-2023 school year was not included in the list of issues to be addressed at the Hearing scheduled to begin on August 7, 2023 as delineated in the Ruling on Newburyport Public Schools’ Partial Motion to Dismiss Claims, and said Ruling was a “final decision” by the Hearing Officer.

Parents’ failure to include the issue of the District’s provision of substantive FAPE to Student during the 2022-2023 school year in Hearing Request #1 presents a dilemma at this juncture. Specifically, should Hearing Request #2 not be consolidated with Hearing Request #1, the parties will have to proceed on said issue in a separate hearing from that addressing the denial of a FAPE based on procedural violations during the same time period, currently under review in Hearing #1, and both hearings would undoubtedly require the same witnesses and similar, if not identical, testimony. The District asserts that to “allow an amendment of BSEA No. 2211471 after two (2) full days of an evidentiary hearing on the merits is prejudicial to the District by needlessly requiring it to incur additional and unnecessary legal expenses and costs associated with defending this added claim, which should have been raised in advance of, not well after the hearing commenced.” However, two separate hearings would result in the same, if not greater, expense.  A single hearing with one final decision can appropriately address the claims raised by both Hearing Requests, and thus the goal of administrative efficiency would best be served by consolidating the matters. Nor would consolidation result in prejudice to the District [18]; BSEA Matter No. 2311471 is not scheduled to continue until November 8, 17, and 20, 2023.  As such, the District would have ample time to prepare its case. If the District requires additional time, the undersigned Hearing Officer would consider a motion to continue to allow NPS additional time to prepare for Hearing.

ORDER:

Parents’ Motion to Consolidate is hereby ALLOWED. The District’s objection to the accelerated status (limited to those issues identified in the August 16, 2023 BSEA Notice of Hearing) is hereby DENIED. However, in light of Parents’ withdrawal of the matter from the accelerated track, the matter will proceed along with the remaining issues.

Accordingly, the matters will proceed as follows:

1. BSEA Matter Nos. 2311471 and 2401600 are hereby consolidated. The matters will proceed to hearing on November 8, 17 and 20, 2023.
2. Exhibits and witness lists are due at by the close of business day on November 1, 2023.

So ordered,

By the Hearing Officer,

s/ Alina Kantor Nir
Alina Kantor Nir

Date: August 28, 2023

[1] Although Parents initially requested a hearing on the Motion, during a conference call on August 22, 2023, Parents’ attorney waived the request.

[2] The information in this section is drawn from the parties’ pleadings and is subject to revision in further proceedings.

[3] This agreement was a resolution of BSEA # 2205014.

[4] 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.

[5] These are the issues as identified by Parents in Hearing Request #1.

[6] This is the relief as identified by Parents in Hearing Request #1.

[7] In the Motion to Consolidate, Parents assert that “the Supplemental Hearing Request is being filed as an expedited hearing request given that the Student is not receiving any services from the District.”

[8] These are the issues as identified by Parents in Hearing Request #2. In the Motion to Consolidate, Parents assert that “the Petitioner believes that its Original Hearing Request is sufficient to address all issues with the student but given that the scope of the hearing underway is in question and based on communications from the Hearing Officer, out of an abundance of caution, the Supplemental Hearing Request is hereby being filed along with this Motion to Consolidate.”

[9] This is the relief as identified by Parents in Hearing Request #2.

[10] On August 16, 2023, BSEA Matter No. 2401600 was denied expedited hearing status. Therfore, I do not address Newburyport’s argument relating thereto. However, the matter was granted accelerated status as to those issues relating to the District’s failure to propose an IEP for the 2023-2024 school year.

[11] Internal footnotes omitted.

[12] A Hearing limited to “issues 1, 2, 3 and 5 and only with respect to the period June 2023” is scheduled to begin on September 14, 2023.  The hearing Officer is unable to postpone a hearing which has been granted accelerated status. However, should the parties wish to present and defend all the claims at the same time, Parents may withdraw their request for accelerated status, and all claims would proceed to Hearing on November 8, 2023.

[13] Fed. R. Civ. P. 42(a); Mass. R. Civ. P. 42(a), as amended, 423 Mass. 1402 (1996).

[14] In Re: Mashpee Public Schools, BSEA # 080998, # 081317, # 081316 (Crane 2008) (“the balance of considerations favored consolidation for the purposes of the evidentiary hearing with respect to the three students”).

[15] See BSEA Hearing Rule I(G).

[16] See BSEA Hearing Rule I(B); see also BSEA Hearing Rule I(C).

[17] See BSEA Hearing Rule II.

[18] I note that in its Objections, Newburyport asserts that “the issues of (a) whether the District made special education services available and (b) whether the Parents obstructed the Student’s receipt of services offered by the District are currently the subject of the evidentiary hearing on the merits of these very claims, BSEA No. 2311471, which commenced on August 7, 2023.” As such, the District should not be highly prejudiced by having to defend itself against a related allegation that it failed to offer substantive FAPE during the 2022-2023 school year.