In re: Student v. Newburyport  Public Schools BSEA # 24-14336

COMMONWEALTH OF MASSACHUSETTS

DIVISION OF ADMINISTRATIVE LAW APPEALS

BUREAU OF SPECIAL EDUCATION APPEALS 

In re: Student v. Newburyport  Public Schools

BSEA # 24-14336

RULING ON NEWBURYPORT PUBLIC SCHOOLS’

PARTIAL MOTION TO DISMISS

AND REQUEST FOR CLARIFICATION OF THE ISSUES

AND

NEWBURYPORT PUBLIC SCHOOLS’

PARTIAL MOTION FOR SUMMARY JUDGEMENT

This matter comes before the Hearing Officer on the Newburyport Public Schools’ Partial  Motion for Summary Judgment and Memorandum of Law in support thereof[1] filed by Newburyport Public Schools (Newburyport or the District) with the Bureau of Special Education Appeals (BSEA) on June 21, 2024 . In it, Newburyport argues that “the Hearing Officer is precluded as a matter of law from ordering the District to fund placement in an unapproved program for summer 2024” and, as such, Issue #7 relating to Extended School Year (ESY) services for the summer of 2024 is “ripe for summary judgment.”

In addition, on June 25, 2024, Newburyport filed the District’s Partial Motion to Dismiss and Request for Clarification of the Issues[2] moving “to partially dismiss the Parent’s Hearing Request on the grounds that the Student does not reside in Newburyport and Newburyport is not the local educational agency (LEA) responsible for the Student’s education; therefore, Parents have failed to state a claim upon which relief may be granted prospectively by the Newburyport Public Schools and the prospective claims are moot as to Newburyport.”[3]

On June 25, 2024, Parents filed Parents[‘] Motion In Opposition To [Plaintiff’s] Motions Request[ing] [] [Re]Consideration Of This Matter[4] (Opposition)[5] in which Parents asked the Hearing Officer to consider  procedural and substantive violations on the part of the District in convening the Team in May and June 2024 for the purpose of developing Student’s IEP. Such alleged violations include, but are not limited to, failing to conduct an evaluation in a timely manner; providing Prior Written Notice; having in attendance all mandatory Team members; providing relevant data; considering a Board-Certified Behavior Analyst’s (BCBA) Observation Report; and providing a description of the ESY program. In addition, Parents allege that the District delayed issuance of the IEP and reneged on its offer to pay for Camp Triumph.

On July 3[6], 2024, Parents’ Advocate filed  her Response to the Partial Motion to Dismiss via email.

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, Newburyport’s Partial Motion for Summary Judgment is ALLOWED. Newburyport’s Partial Motion to Dismiss is ALLOWED, IN PART, in accordance with this Ruling.

I. ISSUES:

The issues presented are:

1. Whether the District is entitled to summary judgment such that the Hearing Officer is precluded as a matter of law from ordering the District to fund placement in an unapproved program for summer 2024?
2. Whether dismissal is appropriate as to all prospective claims?

II. PROCEDURAL HISTORY AND RELEVANT FACTS:

The following facts are not in dispute and are derived from the Hearing Request, the District’s response thereto, the District’s Motions, Parents’ Oppositions, and all exhibits attached to said pleadings.

1. Student is a second-grade resident of Newburyport, Massachusetts. He attends the Francis T. Bresnahan Elementary School in Newburyport, his neighborhood public school. He is diagnosed with Autism and Attention Deficit/Hyperactivity Disorder Combined Type. Student is eligible for special education pursuant to the disability category Emotional. (S-A)
2. On May 2, 2023 the District proposed an Individualized Education Program (IEP) and full inclusion placement for the period from 5/2/23 to 5/1/24 (2023 IEP).  Under Additional Information, the IEP notes that Student would be placed in a co-taught classroom for the 2023-2024 school year and that such classroom would be staffed by a general educator, a special educator, and an instructional assistant. These staff members were “align[ed] to the Therapeutic Learning Center, and [would] be able to support [Student] through a therapeutic learning model.” The 2023 IEP further  included extended school year services (ESY) with Newburyport Youth Services (5 x 345min) for the period from July 5, 2023 until July 28, 2023.  (S-A)
3. Parents accepted the 2023 IEP and placement in full. (S-A)
4. On or about January 23, 2024, the District sent referrals for an extended evaluation for Student, but no such evaluation took place.[7] (P-Spreadsheet, P-Letter Dated 5.7.24)
5. According to Parents, staff left the Therapeutic Learning Center during the 2023-2024 school year, and Parents were not notified. (P- Email from Parents 5.23.24) They contend, for example, that “[t]here was no BCBA unbeknownst to parents from May 2023-mid October 2023.” (Opposition)
6. On May 7, 2024, Parents informed the District that they would be relocating and “no longer reside in Newburyport, effective June 24, 2024.” They noted that “there have been multiple packets sent out for [Student] for Out of District evaluation as well as no finalized agreement about the ESY services (4 weeks per last accepted IEP) for summer 2024.” (Hearing Request, P-Letter Dated 5.7.24, P-Spreadsheet)
7. On or about May 13, 2024, Camp Triumph “conditionally accepted” Student to the July 15-August 2, 2024 session.  The letter sent by Camp Triumph to Parents, which was undated, stated that Parents “are responsible for all Camp Triumph fees unless we receive a signed contract from a school or outside agency by June 1, 2024 and payment in full from that agency by August 31, 2024.” (P-Letter from Camp Triumph, P-Spreadsheet)
8. On May 22, 2024, Parents sent the District a BCBA Observation Report dated May 2, 2024 for consideration. (Opposition)
9. On May 22, 2024, the Team convened to develop Student’s IEP. (P-Meeting Notes 5.22.24, S-B) According to Parents, the meeting “started 20 minutes late, thus cutting short a meeting that should have been anticipated to be lengthy due to overdue assessments, overdue schedule, and need to prepare for a transition into another district.” (P-Email Dated June 4, 2024)
10. The Team was unable to complete the IEP during the hour and a half Team meeting, and as such did not develop the Team vision and goals or determine a final location for ESY services. The District provided Parents with the Team Meeting Summary Notes for the May 22, 2024 Team meeting. (P-Meeting Notes 5.22.24)
11. According to Parents, the BCBA Observation Report was not considered at the meeting. (Opposition, P- Meeting Notes 5.22.24)
12. The District scheduled a follow up Team meeting for Thursday, June 13, 2024. (S-B)
13. According to Parents, Student’s last accepted ESY location would not be appropriate for Student for the summer of 2024. As such, Newburyport agreed to explore other options, such as Camp Triumph, for Student. (Opposition)
14. According to the District, in anticipation of Team discussion on May 22 and in an effort to work collaboratively with the Parents, the District initiated conversation with Camp Triumph, a program not approved by the Department of Elementary and Secondary Education (DESE). However, Newburyport did not commit to such placement. (S-A, S-B)
15. On May 23, 2024, Student’s BCBA began a leave of absence from the District. (P-Email from Deb O’Connor 5.23.24)
16. On June 4, 2024, Parents contacted the District inquiring as to who would be present at the upcoming Team meeting, as they were concerned that all mandatory Team members be present, especially in light of recent staff attrition. They also summarized the following concerns:

1. “1. It was agreed that [Autism Spectrum Disorder (ASD)] be added as a disability category, as is reflected in the meeting summary provided by the district.
2. The district was not able to define the number of trained staff involved in [Student’s] program which are present and able to implement his necessary support at each time throughout the day. This information is vital to help define the most appropriate placement for [Student] in his new school district comparable to his last accepted IEP.
3. District BCBA reported spending as much as 5 hours per week specifically with [Student]. We still do not have data from the BCBA.
4. Staff reported a points system which [Student] has utilized successfully during the past 6-8 weeks.
5. Staff are in agreement that access to advanced materials are an important component for [Student’s] success.
6. Newburyport District walked back on agreement to provide [Student] appropriate ESY placement at Camp Triumph, session 2, after sending a referral through its special education office.
7. The overdue evaluation requests and agreed-to extended evaluation did not occur, limiting assessment data, which could clarify changes needed to the IEP.”

(P-Email from Parents 6.4.24)

17. On June 6, 2024 Parents filed a Hearing Request with the BSEA, raising the following 7 issues as ISSUES IN DISPUTE[8]:  

1. “Did the Individualized Education Program (IEP) that Newburyport Public Schools developed for [Student] from May 2, 2023 – May 1, 2024, currently indicating a co-taught full inclusion placement at the Bresnahan School, provide him with a free appropriate public education (“FAPE”) in the Least Restrictive Environment (“LRE”)?
2. Does the accepted IEP for the period May 2, 2023- May 1, 2024 provide FAPE given the omission of details outlining the level of therapeutic support necessary for [Student] to access the general education curriculum and all age and developmentally appropriate activities?
3. Should Newburyport be ordered to provide compensatory services for its failure to provide an appropriate special education programming [sic] through its lack of BCBA services/consultation through the majority of the period May 2023- February 1, 2024?
4. Should Newburyport be ordered to provide compensatory services for its failure to provide special education assessments (School [Functional Behavior Assessment (FBA)], consent signed October 30, 2023; (FBA) consent signed May 8, 2023; and [Occupational Therapy (OT)] consent signed October 30, 2023) and failure to provide appropriate, consistent data? Is the lack of collecting adequate information and potential implications for the lack of information to be used when developing a suitable IEP, a violation of FAPE?
5. Does Newburyport’s failure to provide consistent, timely, evidence-based data constitute a denial of FAPE in the least restrictive setting?
6. Does Newburyport’s failure to provide the ESY programming at Camp Triumph, proposed through its special education administrator, constitute a violation of FAPE especially given the timely nature of the agreement and later refusal? Does this qualify [Student], a high-needs student being educated in a general education setting with teacher and aide support throughout his day, as a student without an available placement for ESY?
7. Is Newburyport’s IEP dated May 2, 2023 to May 1, 2024 (past-due from lack of district proposing a team meeting until after the expiration of the current IEP and with no amendments proposed since acceptance in May 8, 2023) a reflection of [Student]’s current level of performance? As such does it indicate a program in the least restrictive setting? Does the failure of the district to provide appropriate services (special education and related) indicate a denial of FAPE in the Least Restrictive Environment? If not, should the IEP be amended immediately with updated program details so that, in the event of change in material circumstances, it can be considered an accurate reflection of [Student]’s programming May 3, 2023 – Present?”

18. In addition, in the body of the Hearing Request, Parents raised the following 2 additional issues (labelled in this Ruling as Issues # 9 and 10, respectively, for ease of reference):

Issue 9: Whether the May and June 2024 IEP Teams failed to include all mandatory Team members?[9]; and

Issue 10: Whether the District’s “failure” demonstrate that the District discriminated against Student in violation of Section 504 of the Rehabilitation Act of 1973?[10]

19. Parents requested the following relief[11]:

1. “Determine that the Newburyport Public Schools failed to provide [Student] with a free appropriate public education and the IEP is not reasonably calculated to provide FAPE;
2. Order Newburyport to immediately send the required intent to pay to Camp Triumph [w]ithout such [Student] is not able to access a proposed program;
3. Find that Newburyport’s failure to assess and provide consistent data about [Student’s] progress since June 2023, and the refusal to share actual staffing, and all other procedural safeguards constitute a denial of FAPE;
4. Order Newburyport to fund parent [sic] chosen outside evaluations not attached to rate-setting for a comprehensive Functional Behavior Assessment (home and school) and comprehensive Occupational Therapy assessment;
5. Find that Newburyport has failed to identify programming to meet [Student’s] unique needs within his Least Restrictive Environment in his IEP or amendments, and therefore any receiving district does not have adequate information that allows it to propose a comparable placement for ESY and school yet and that this constitutes a denial of FAPE;
6. Find that all failure of Newburyport discriminated against him due to his parents’ advocacy;
7. Order that Newburyport provide compensatory services based on all the above.”

20. The Team reconvened on June 13, 2024. (S-B) According to Parents, there was no special education teacher at the meeting and no data was provided relative to Student’s past regression. (Opposition)
21. On June 20, 2024, the District proposed an IEP for the period from 5/22/2024 to 5/21/2025 (2024 IEP) with full inclusion placement in Newburyport. PLEP A states that Student’s supports are provided through the Therapeutic Learning Center (TLC). In addition to other services, the District proposed ESY services “to take place in the district” beginning on 7/18/2024 and ending on 8/15/2024 (5 x 180 min/5 days).  Student would continue to receive support from the Therapeutic Learning Center both during ESY and during the school year. (S-B)  The Team did not propose Camp Triumph, “an unapproved program for the location of ESY services as the District has an appropriate in-district ESY program available for [Student] to participate in and receive his ESY services within the [Therapeutic Learning Center] model.” (S-B)
22. According to Parents, Newburyport “proposed a substantially separate ESY academic program with no typically developing peers. [Student] has no academic goal areas and has always been in the LRE of Full Inclusion. Both IEPs indicate removal from general education is only necessary for counseling services under Non-Participant Justification.”  In addition, in the District, “[t]here is no ‘social emotional program’ called TLC, there is a label, not a program.” (Opposition)
23. On or about June 24, 2024, Parents sold their home in Newburyport and purchased a home in Haverhill.[12] (S-C, S-D)

III. LEGAL STANDARDS AND APPLICATION OF LEGAL STANDARDS:

As the outcome of the District’s Partial Motion to Dismiss could be determinative, I address it first.

1. Motion to Dismiss

1. Legal Standard

Pursuant to Rule XVII A and B of the Hearing Rules and 801 CMR 1.01(7)(g)(3)[13], 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. To survive a motion to dismiss, there must exist “factual ‘allegations plausibly suggesting (not merely consistent with)’ an entitlement to relief.”[14] 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.”[15] These “[f]actual allegations must be enough to raise a right to relief above the speculative level.”[16]

2.  Jurisdiction of the Bureau of Special Education Appeals (BSEA)

20 U.S.C. § 1415(b)(6) grants the Bureau of Special Education Appeals (BSEA) jurisdiction over timely complaints filed 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.”[17]  In Massachusetts, a parent or a school district, “may request mediation and/or a hearing at any time on any matter[18]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.”[19] Nevertheless, it is well established that matters that come before the BSEA must involve a live or current dispute between the Parties.[20]  In addition, 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.”[21]

3. Application of Legal Standards:

1. Dismissal As To Issue #1, Issue #2, Issue #7, And Issue #8, In Part, Is Appropriate, In Accordance With This Ruling. In Addition, Dismissal Is Appropriate As To All Claims Relating To The Time Period Subsequent To June 24, 2024.

The District contends that as of Parents’ and Student’s move to Haverhill on June 24, 2024[22], Newburyport was no longer the Local Education Agency (LEA) with programmatic and fiscal responsibility for the Student. Consequently, any prospective relief, including but not limited to Parent’s demand for the Hearing Officer to order Newburyport to fund an unapproved summer camp and Parents’ demand that Newburyport evaluate the Student are moot, as Newburyport no longer has programmatic or fiscal responsibility for the Student, and the Hearing Officer cannot grant the prospective requested relief.

Parents’ complaint involves two IEPs: the IEP for the period from 5/2/23 until 5/1/24 (2023 IEP) and the IEP for the period from 5/22/2024 to 5/21/2025 (2024 IEP)[23].  The District is correct that, pursuant to 603 CMR 28.10(1) and (2), school districts shall be programmatically and financially responsible for eligible students based on residency and enrollment.

Based on the pleadings and Parents’ representations in the Hearing Request, as of June 24, 2024, Student no longer resided in Newburyport.  Thus, any claims relating to the 2023 IEP for the period from 5/2/23 to 5/1/24 survive dismissal as do any claims Parents may have  relative to a denial of a FAPE during the period between the expiration of the 2023 IEP on 5/1/24 and the proposal of the 2024 IEP on 6/20/2024. Similarly, claims arising from 6/20/24, when the 2024 IEP was proposed, until 6/24/2024, when Parents moved, also survive dismissal. However, claims relating to the time period subsequent to June 24, 2024 must be dismissed as Newburyport is no longer the LEA programmatically (or financially) responsible for Student.[24] Rather, on June 24, Haverhill became responsible for Student.[25]

In addition, Issue # 1 and  Issue # 2 must be dismissed with prejudice as the IEP for the period from 5/2/23 until 5/1/24 was accepted in full by Parents, and a Hearing Officer may not revisit a fully accepted and expired IEP.[26]

As Issue # 3 claim relates to Newburyport’s failure to implement an accepted, expired IEP, it survives dismissal. Taking as true the allegations in the complaint, as well as such inferences as may be drawn therefrom in Parents’ favor,[27] I find that Parents plausibly suggest an entitlement to relief as “[t]o provide a free and appropriate public education to a student with disabilities, the school district must not only develop the IEP, but it also must implement the IEP in accordance with its requirements.”[28]

Both Issues # 4 and # 6 survive dismissal. Taking as true the allegations of the complaint, as well as such inferences as may be drawn therefrom in Parents’ favor,[29] I find that these retroactive claims, accruing prior to Parents’ change of residence and relating to the District’s failure to evaluate[30], failure to collect proper data for progress monitoring[31], and denial of meaningful parental participation as a result of Parents’ having insufficient information[32] raise a right to relief.[33]

Parents assert that

“[t]he issue of if Camp Triumph and its components provides FAPE and if the district proposal provides FAPE is what is most important for hearing.  Camp Triumph itself should be funded as per District’s own argument that in March 2024, the district proposed/supported Camp Triumph in writing and that it is a recreational program, but also it [is] more therapeutic than Newburyport’s as a reason to send the referral packet for only 3 weeks, not 4.  District states that the offer was made in an attempt to address issues that would arise in anticipation of litigation. If so, the district can make a ‘settlement offer’ before there is any litigation.”

To the extent that Issue # 7 alleges that Newburyport’s failure to provide the ESY programming at Camp Triumph constitutes a  denial of FAP such issue must be dismissed. The 2024 IEP, proposed on June 20, 2024, called for ESY services beginning on July 8, 2024.  Parents changed their residence on June 24, 2024. Even if I take as true the allegations of the complaint, as well as such inferences as may be drawn therefrom in Parents’ favor, I could not order he  relief sought, as, due to Parents’ change of residence, Newburyport has no FAPE obligation to Student for ESY 2024.  Therefore, Issue # 7 is dismissed.

However, to the extent that Parents assert that the decision relative to ESY placement was made outside of the Team meeting process (the Team meetings having taken place on May 22 and June 13, 2024), and that Parents were denied meaningful parental participation, Parents may proceed to hearing on this claim of procedural violation,[34] which, arising prior to Parents’ change of residence, “plausibly suggest[s] [] an entitlement to relief.”[35]

With respect to Issue # 8, Parents, assert that

“Dismissing the accelerated status is appropriate, but the issue of appropriateness is for hearing.  Parents do not request the best, more expensive, preferred choice as it’s been written by District, Parents seek that District provide what is appropriate for [Student’s] needs,  not his disability or diagnosis.”

To the extent that Issue # 8 contends that the District denied Student a FAPE in the LRE by failing to propose an IEP prior to the expiration of the May 2023 IEP, such issue survives dismissal. Because, at a minimum, an IEP must be reviewed annually,[36] Parents’ factual allegation that the District failed to develop an IEP in a timely manner raises a right to relief.[37]

However, to the extent that Issue # 8 asserts that the May 2024 IEP needs to “be amended immediately with updated program details so that, in the event of change in material circumstances, it can be considered an accurate reflection of [Student]’s programming May 3, 2023 – Present”, such claim must be dismissed. Taking as true “the allegations of the complaint, as well as such inferences as may be drawn therefrom in the plaintiff’s favor,”[38] I cannot find that Parents’ allegations raise a right to relief[39] as Student no longer resides in Newburyport, and the District has no programmatic responsibility for Student, including no obligation to amend his IEP.[40]

Moreover, to the extent that Issue # 8 contends that Newburyport “failed to identify programming to meet [Student’s] unique needs within his Least Restrictive Environment in his IEP or amendments, and therefore any receiving district does not have adequate information that allows it to propose a comparable placement for ESY and school yet and that this constitutes a denial of FAPE,” such issue must be dismissed for failure to state a claim upon which relief may be offered. Specifically, 603 CMR 28.03(c) states that when an eligible student or student’s family changes residence from one Massachusetts school district to another, the last IEP written by the former school district and accepted by the parent shall be provided in a comparable setting without delay until a new IEP is developed and accepted.  Here, the 2024 IEP with in-District ESY services has not yet been accepted by Parents. Because Parents believe that the 2024 IEP is inappropriate, they assert that Haverhill, Student’s  town of residence as of June 24, 2024, is unable to implement an appropriate IEP for Student. As such even if I take as true “the allegations of the complaint, as well as such inferences as may be drawn therefrom in the plaintiff’s favor,”[41] I could not find that these “[f]actual allegations [] raise a right to relief”[42] as there is nothing in IDEA, state law, or its implementing regulations (nor is there any caselaw) to support such cause of action, and Parents have provided no legal support for pursuing such claim.  Therefore, it must be dismissed.

Issues # 9 and # 10 raise claims which accrued prior to June 24, 2024. These fall within the subject matter jurisdiction of the BSEA, raise a right to relief[43] and, therefore, survive dismissal.

2. Summary Judgment

1. Legal Standard:

Unlike a Motion to Dismiss, which requires the fact-finder to make a determination based on a complaint or Hearing Request alone, evaluation of a Motion for Summary Judgment permits the fact-finder to go beyond the pleadings to assess evidence. Pursuant to 801 CMR 1.01(7)(h), Summary decision may be granted when there is “no genuine issue of fact relating to all or part of a claim or defense and [the moving party] is entitled to prevail as a matter of law.”[44] In determining whether to grant summary judgment, BSEA hearing officers are guided by Rule 56 of the Federal and Massachusetts Rules of Civil Procedure, which provides that summary judgment may be granted only if the “pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there are no genuine issues as to any material fact and that the moving party is entitled to judgment as a matter of law.”[45] A genuine dispute as to a material fact exists if a fact that “carries with it the potential to affect the outcome of the suit” is disputed such that “a reasonable jury could resolve the point in the favor of the non-moving party.”[46] The moving party bears the burden of proof, and all evidence and inferences must be viewed in the light most favorable to the party opposing summary judgment.[47]

In response to a motion for summary judgment, the opposing party “must set forth specific facts showing that there is a genuine issue for trial.”[48] To survive this motion and proceed to hearing, the adverse party must show that there is “sufficient evidence” in her favor that the fact finder could decide for her.[49] In other words, the evidence presented by the non-moving party “must have substance in the sense that it [demonstrates] differing versions of the truth which a factfinder must resolve at an ensuing trial.”[50] The non-moving party’s evidence will not suffice if it is comprised merely of “conclusory allegations, improbable inferences, and unsupported speculation.”[51]

As such, to analyze whether the party moving for summary judgment has met its initial burden such that the burden shifts to the opposing party, I must view all the evidence it has submitted in the light most favorable to the opposing party and determine that there is no genuine issue of material fact related to the claims before me. Only if the moving party is successful in this first step does the burden then shift to the opposing party. 

Hence, I first turn to the legal standards regarding the Hearing Officer’s authority to order a school district to place a child in an unapproved program.

2. Placement in an Unapproved Program

Under 20 U.S.C. § 1401(a)(18)(D), the ‘free and appropriate public education’ required under IDEA must meet the standards of the State educational agency; this means that “the universe of private programs that a state may consider is at least partly defined by state law.”[52] 603 CMR 28.06 (3)(d) states that the “school district shall, in all circumstances, first seek to place a student in a program approved by the Department pursuant to the requirements of 603 CMR 28.09….When an approved program is available to provide the services on the IEP, the district shall make such placement in the approved program in preference to any program not approved by the Department.”  As such, the Hearing Officer cannot order a school district to fund an unapproved program[53] except “in cases where a parent unilaterally places a child in [an unapproved] program because the school has not offered an appropriate IEP.”[54]

3. Application of Legal Standards:

1. Partial Summary Judgment for Newburyport is Allowed on Issue # 7.[55]

I note at the outset that my finding supra dismissing  Issue #7 renders unnecessary my consideration of  the District’s Partial Motion for Summary Judgment. However, to the extent that the District seeks a ruling on its Motion, I find that Newburyport is entitled to summary judgment on Issue # 7. My reasoning follows.

Here, there is no genuine issue of fact that on June 20, 2024 the District proposed placement in an approved in-District ESY program. Parents disagreed with the appropriateness of this placement and requested placement at Camp Triumph, an unapproved summer program. Parents assert that

“The facts remain in dispute.  The agreement is ESY was proposed in an IEP received July 20, but with no description and it was done so without critical members of the team present.  The fact is that a written sentence such as  ‘ESY district program is aligned to the TLC program’ with no further details is not reasonably calculated to provide FAPE.  The type of program should be laid out by Newburyport.  The last accepted program was not and it was not licensed by DESE and had no specialized instruction or related services provided[].  A  district isn’t required to fund a non-approved program, but BSEA decisions do support placement and/or reimbursement to Parents ([i.e.,] unilateral placement) in such programs when it is reasonably calculated to meet the student’s needs and the district has nothing to do so with.”

In contrast to cases where parents, believing that the school district has failed to offer a FAPE, unliterally place their child in an unapproved program and seek a reimbursement order, a Hearing Officer cannot order prospective placement in an unapproved program where an approved appropriate program is available.  Here, Parents have offered no evidence that an appropriate, approved program is not available, thereby necessitating placement in an unapproved program, such as Camp Triumph.[56] As such, summary judgment is allowed for Newburyport.

V. ORDER:

Newburyport’s Partial Motion to Dismiss is ALLOWED such that all claims relating to the time period subsequent to June 24, 2024 are DISMISSED with PREJUDICE. In addition, Issue # 1, Issue # 2, Issue # 7 and Issue # 8, In Part, are hereby DISMISSSED with PREJUDICE. Newburyport’s Partial Motion for Summary Judgment is ALLOWED.

The Hearing in this matter will proceed on the following issues:

1. Whether Newburyport denied Student a FAPE in the LRE by failing to propose an IEP prior to the expiration of the May 2023 IEP?
2. Whether the decision relative to ESY placement for 2024 was made outside of the Team meeting process, and, if so, whether Parents were denied meaningful parental participation?
3. Whether the May and June 2024 IEP Teams failed to include all mandatory Team members?
4. Whether Newburyport failed to implement the 2023 IEP?
5. Whether Newburyport failed collect data and progress monitor Student during the 2023-2024 school year? 
6. Whether, after receiving consent from Parents on May 8 and October 30, 2023, Newburyport failed to administer two (2) Functional Behavior Assessments and an Occupational Therapy Evaluation?
7. If the answer to any of the above is “yes,” what is the appropriate relief, if any?
8. If the answer to any of (1) through (7) is “yes,” whether the District discriminated against Student in violation of Section 504 of the Rehabilitation Act of 1973?

So Ordered,

s/ Alina Kantor Nir

Alina Kantor Nir

Date: July 5, 2024

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.

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[1] In support of its Partial Motion for Summary Judgment, the District submitted 2 exhibits which I have marked as S-A and S-B.

[2] In support of its Partial Motion to Dismiss, the District submitted 1 exhibit which is identical to Exhibit S-B submitted in support of Newburyport’s Partial Motion for Summary Judgment.

[3] According to Newburyport, the District “does not dispute the ability of the Hearing Officer to consider this matter with regard to the period of time in question when Newburyport had both programmatic and fiscal responsibility for the Student should this matter proceed to hearing.” 

[4] Via email dated the same date, Parents’ Advocate indicated that the Opposition includes Parents’ “Response to District’s numerous motions.” 

[5] Parents submitted 9 exhibits in support of their Opposition. Two of the exhibits were identical. In this Ruling, I identified the exhibits in accordance with the labels provided by Parents, adding dates for clarification.

[6] The Response was due on July 2, 2024, but the Hearing Officer allowed Parents’ submission on July 3, 2024 over the District’s July 3,2024 objection to the untimely submission. See BSEA Hearing Rule VII(C) (“Any party may file written objections to the allowance of the motion and may request a hearing on the motion within seven (7) calendar days after a written motion is filed with the Hearing Officer and the opposing party, unless the Hearing Officer determines that a shorter or longer time is warranted”).

[7] The reason for the referral for an extended evaluation is not clear from the pleadings and exhibits. It appears that Student was not accepted at any program for the extended evaluation. (P-Spreadsheet)

[8] These are copied verbatim from the Hearing Request. Issue #5 is missing from Parents’ Hearing Request.

[9] This issue was not delineated in the Hearing Request’s Statement of Issues but was included in the body of the Hearing Request.

[10] In their Hearing Request, Parents seek a finding that “all failure of Newburyport discriminated against [Student] due to his parents’ advocacy.”

[11] These are copied verbatim from the Hearing Request.

[12] Parents’ Hearing Request states: “On May 7, 2024, Parents electronically notified Haverhill Public Schools that they were moving into the district and on May 8, 2024 via a 1 page letter to the Special Education Director and Assistant Director and shared the children’s names, IEP status (partially rejected or accepted), and status and current placements.”  On June 24, 2024, Parents’ Advocate submitted an email request for extension to file a Response to the June 21, 2024 Newburyport Public Schools’ Motion for Reconsideration of Accelerated or Expedited Status. On the same date, the District responded via letter that it has no objection to the request but noting that “the District intends to file a Partial Motion to Dismiss on the prospective claims based on the Parents’ representation they moved out of Newburyport effective today, June 24, 2024.” The District attached, as exhibits to its letter, two quitclaim deeds (Exhibits A and B) indicating that Parents “sold their house in Newburyport today (recorded at 2:27 pm) and recorded their purchase of a home in Haverhill at 3:11 pm.”  These exhibits are referred to in this Ruling as S-C and S-D, respectively.

[13] 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.

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

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

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

[17] See 34 C.F.R. §300.507(a)(1).

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

[19] 603 CMR 28.08(3)(a).

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

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

[22] Parents’ Hearing Request states: “On May 7, 2024, Parents electronically notified Haverhill Public Schools that they were moving into the district and on May 8, 2024 via a 1 page letter to the Special Education Director and Assistant Director and shared the children’s names, IEP status (partially rejected or accepted), and status and current placements.”

[23] This IEP was not proposed by Newburyport until June 20, 2024.

[24] See M.G.L. 71B section 3 (“the school committee of every city, town or school district shall identify the school age children residing therein who have a disability, as defined in section 2, diagnose and evaluate the needs of such children, propose a special education program to meet those needs, provide or arrange for the provision of such special education program, maintain a record of such identification, diagnosis, proposal and program actually provided and make such reports as the department may require”) and M.G.L. 71B section 5 (“The school committee of the new community of residence shall assume all responsibilities for reviewing the child’s progress, monitoring the effectiveness of the placement, and reevaluating the child’s needs from the date of new residence…”). I note that the Massachusetts Move-In Law does not apply as, here, Student did not attend either a day or a residential program while in Newburyport. See G. L. c.71B, section 5.

[25] See 603 CMR 28.03(c)(1) (“When an eligible student or student’s family changes residence from one Massachusetts school district to another, the last IEP written by the former school district and accepted by the parent shall be provided in a comparable setting without delay until a new IEP is developed and accepted”); see also In Re: Amesbury Public Schools (Ruling on Motions for Summary Judgment), BSEA# 99-5005 (Erlichman, 2000) (“Amesbury was thus required, upon Mother’s change of residence, to immediately implement the special education programming provided Student by his former community of residence (Agawam), this, until a new evaluation was completed by Amesbury and an IEP proffered and accepted. The regulation is clear…. [It] requires, initially, that the new town maintain the status quo, and it prescribes the TEAM process as the procedure to be utilized to insure that the school committee of the new town of residence has an opportunity to assess the student and proffer an IEP which it believes to be procedurally and substantively valid”).

[26] 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”).

[27] Blank, 420 Mass. at 407.

[28] Colón-Vazquez v. Dep’t of Educ., 46 F. Supp. 3d 132, 144 (D. P.R. 2014) (citing 20 U.S.C. § 1401(9)(D)) (“Where an IEP has been accepted, the analysis shifts to implementation.).

[29] Blank, 420 Mass. at 407.

[30] See 603 CMR 28.04(2) and 603 CMR 28.05(1).  Although the District is correct that Newburyport has no duty to evaluate Student, as he is no longer a resident of Newburyport, to the extent that Parents seek an order that Newburyport “fund parent [sic] chosen outside evaluations not attached to rate-setting for a comprehensive Functional Behavior Assessment (home and school) and comprehensive Occupational Therapy assessment” as compensatory relief for the District’s alleged “failure to provide special education assessments (School FBA, consent signed October 30, 2023; FBA consent signed May 8, 2023; and OT consent signed October 30, 2023,” such relief may be ordered by the Hearing Officer, who has broad discretion to fashion relief. See, e.g., Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 16 (1993) (in “fashioning discretionary equitable relief under IDEA [we] must consider all relevant factors”); Sch. Comm. of Burlington v. Massachusetts, 471 U.S. 359, 369 (1985) (courts have “broad discretion” in fashioning appropriate relief to remedy a school district’s failures under the federal special education law); Reid v. District of Columbia, 401 F.3d 516 (D.C. Cir. 2005); W.B. v. Matula, 67 F.3d 484, 494-95 (3d Cir.1995) (nothing in the text or history suggesting that relief under IDEA is limited in any way)(overruled on other grounds).

[31] See In re: Preston v. Nashoba Regional School District, BSEA # 20-04002 (Reichbach, 2020) (finding the IEP proposed to be not reasonably calculated where “there were significant limitations to [] data collection and conclusions [, and] [d]ata was not being collected on some of Preston’s known negative behaviors, and communication from the school appeared to underreport those behaviors”); In Re: Duxbury Public Schools v. Student, BSEA # 07-3141 (Figueroa, 2007) (the district “bears the responsibility to oversee [special education] services and ensure that they are being provided consistent with the recognized and accepted standards in the particular field” including but not limited to proper data collection).

[32] See 34 C.F.R. § 300.320(a)(3). See also Sebastian M. v. King Philip Reg’l Sch. Dist., 685 F.3d 79, 84 (1st Cir. 2012) (at a bare minimum, the IEP must include objective criteria with which to measure progress toward goals); I.M. v. Northampton Pub. Sch., 869 F. Supp. 2d 174, 183 (D. Mass. 2012) (examining whether “NPS failed to properly transition I.M. to Perkins and to monitor his progress” there); T.M. v. Quakertown Cmty. Sch. Dist., 251 F. Supp. 3d 792, 800 (E.D. Pa. 2017) (“[r]egular progress monitoring, through periodic progress reports provided to the parents and the IEP team, is critical to a substantively appropriate IEP); W.H. v. Schuykill Valley Sch. Dist., 954 F. Supp. 2d 315, 329 (E.D. Pa. 2013) (examining whether the District significantly impeded the parent’s opportunity to participate in the decision-making process where parents asserted that they did not receive sufficient information about C.H.’s progress); I.H. v. Cumberland Valley Sch. Dist., 2012 WL 2979038 (M.D.Pa., July 20, 2012) (reviewing a hearing officer’s denial of an IDEA claim where progress monitoring “left much to be desired”).

[33] Golchin, 460 Mass. at 223.

[34] See Mystic Valley Regional Charter School, BSEA # 1907460 (Reichbach, 2019) (“To the extent a decision not to provide additional transition services was made outside of the Team process, and without Parents’ input, MVRCS committed an additional procedural error”).

[35] Iannocchino, 451 Mass. 636 (2008).

[36] See 34 CFR 300.324 (b).

[37] Golchin, 460 Mass. at 223.

[38] Blank, 420 Mass. at 407.

[39] Golchin, 460 Mass. at 223.

[40] See 603 CMR 28.10(1) and (2); see also D.N. by & through Truong v. El Monte Union High Sch. Dist., No. CV1801582ABAFMX, 2019 WL 4137416, at *5 (C.D. Cal. June 24, 2019) (“once El Monte was informed of Mother’s change in residence, it no longer had any obligations to create an IEP for D.N.”).

[41] Blank, 420 Mass. at 407.

[42] Golchin, 460 Mass. at 223.

[43] Golchin, 460 Mass. at 223.

[44] 801 CMR 1.01(7)(h).

[45] Id.

[46] French v. Merrill, 15 F.4th 116, 123 (1st Cir. 2021); see also Maldanado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 581 (1st Cir. 1994).

[47] See Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 252 (1986).

[48] Anderson, 477 U.S. at 250.

[49] Id. at 249.

[50] Mack v. Great Atl. & Pac. Tea Co., 871 F.2d 179, 181 (1st Cir. 1989). 

[51] Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990).

[52] T.R. v. Kingwood Twp. Bd. of Educ., 205 F.3d 572, 580 (3d Cir. 2000); see Antkowiak v. Ambach, 838 F.2d 635, 638 (2d Cir.1988) (rejecting placement in an unapproved school).

[53] See, e.g., Manchester–Essex Reg’l Sch. Dist. Sch. Comm. v. Bureau of Special Educ. Appeals of The Massachusetts Dep’t of Educ., 490 F. Supp. 2d 49, 54–55 (D. Mass. 2007) (“[a]s a matter of law, the School District was entitled to refuse the unapproved and unaccredited program for D.T.’s IEP”); Tewksbury School Committee v. Bureau of Special Education Appeals, et al., Civil Action No. 08-11172-GAO (Mass. 2009) (finding that the district was not required to amend the student’s IEP to reflect the Kumon Center as the service provider nor to pay the Kumon Center directly); Z.H. v. New York City Dep’t of Educ., 107 F. Supp. 3d 369, 376 (S.D.N.Y. 2015) (“fact that a school district may consider placement in a private school does not mean that it may place the student at any private school, including one that does not meet the Commissioner’s approval standards”); Dobbins v. D.C., No. CV 15-0039 (ABJ), 2016 WL 410995, at *5 (D.D.C. Feb. 2, 2016) (agreeing that as parents had “not established that none of the OSSE-approved nonpublic special education schools or programs would be able to implement a full-time residential IEP for [A.D.] [and] [] because [Solstice] lacks a valid Certificate of Approval from OSSE, pursuant to D.C. Code § 38-2561.03(b)(2),” the hearing officer was correct in denying parents’ request that the hearing officer “order DCPS to fund [A.D.’s] placement at [Solstice]”); In Re: Student v. Newburyport (Ruling On Newburyport Public Schools’ [Partial] Motion To Dismiss Parents’ Tort, Retaliation, “Credibility,” And Constitutional Claims,  On Newburyport Public Schools’ Motion For Summary Judgment, And On Parents’ [Partial] Motion For Summary Judgment), BSEA # 2411365 (Kantor Nir, 2024) (“As such, the Hearing Officer cannot order a school district to fund an unapproved program where an appropriate approved one is available….Here, an approved residential program could be available to Student and must be given preference”); Tewksbury Public Schools, BSEA # 1402344 (Putney-Yaceshyn, 2015) (given Student’s acceptance at an approved residential school, Tewksbury could not be permitted to use public funds to place the student residentially in a non-educational residential placement); In Re: Hamilton-Wenham Regional School District spacing

BSEA #07-2103 (Putney-Yaceshyn, 2007) (“Although Student believes that only OPI can provide him with the services he requires, a belief not supported by a scintilla of expert evidence, OPI is not an option for him. Hamilton-Wenham is legally precluded from providing public funds for a placement that is neither approved by the Commonwealth of Massachusetts nor an educational program”).

[54] See Manchester-Essex Reg’l Sch. Dist. Sch. Comm., 490 F. Supp. 2d at 54.

[55] Summary Judgment is also appropriate for Newburyport on the portion of Issue #1 which states “Does this qualify [Student], a high-needs student being educated in a general education setting with teacher and aide support throughout his day, as a student without an available placement for ESY?” As indicated in my June 26, 2024 Ruling on Newburyport Public Schools’ Motion for Reconsideration of Accelerated or Expedited Status, “Whether the ‘TLC Program’, as proposed for Student, exists as a discrete program, was the result of proper procedural process, or is appropriate, are issues of fact for Hearing. However, such issues of fact do not trigger accelerated status. The District has proposed a placement albeit not the one Parents prefer.”

[56]  See Anderson, 477 U.S. at 256–57 (“The movant has the burden of showing that there is no genuine issue of fact, but the plaintiff is not thereby relieved of his own burden of producing in turn evidence that would support a jury verdict. Rule 56(e) itself provides that a party opposing a properly supported motion for summary judgment may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial”).