COMMONWEALTH OF MASSACHUSETTS
DIVISION OF ADMINISTRATIVE LAW APPEALS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Student v. Rockland Public Schools
BSEA# 2604150
RULING ON ROCKLAND PUBLIC SCHOOLS’ MOTION TO DISMISS AND PARENT’S EMERGENCY MOTION TO STRIKE/DENY AND FOR PROTECTIVE RELIEF REGARDING SETTLEMENT COMMUNICATIONS
PROCEDURAL HISTORY
On October 9, 2025, Parent, by her advocate, filed a Hearing Request in the above matter seeking “declaratory relief confirming the right to Independent Educational Evaluations (IEEs) at public expense, without limitation to state rate, as a result of Rockland Public Schools’ procedural and substantive violations.” Parent requested the following relief: 1. A declaratory finding that Rockland Public Schools violated 34 C.F.R. §300.502(b) and 603 CMR 28.04 by failing to initiate timely reevaluation and to respond without unnecessary delay to Parent’s IEE request; 2. An order requiring Rockland Public Schools to fund the independent neuropsychological, occupational therapy, physical therapy, speech/language and social-emotional evaluations at “full private rate, without limitation to the state rate.”; 3. Reimbursement to the Parent for reasonable advocacy expenses incurred due to the District’s noncompliance.
On October 20, 2025, in response to Parent’s Hearing Request, Rockland Public Schools (hereafter, “Rockland”) filed a Motion to Dismiss Parent’s Hearing Request with Supporting Memorandum of Law. (Motion) Rockland’s Motion asserts that motions to dismiss should be allowed where the nonmovant fails to state a claim upon which relief can be granted, and that the BSEA has limited jurisdiction and authority to grant relief, which does not include authority to issue “declaratory” relief. Finally, it states that non-attorney advocate’s fees are not available under the IDEA.
On October 21, 2025, Parent’s advocate filed “Parent’s Emergency Motion to Strike, Deny, and For Protective Relief Regarding Settlement Communications.” It argued that Rockland’s Motion to Dismiss and supporting documentation contained settlement communications which are inadmissible and should be excluded from its submissions. It requested, in relevant part, that the BSEA deny the Motion to Dismiss as “procedurally improper and prejudicial” because it relies on confidential settlement communication; strike all references to or exhibits containing settlement discussions, and enter a protective order precluding any further reference to or use of settlement communications. Later, on October 21, 2025, Parent’s advocate filed a document entitled “Clarification Regarding Parent’s Emergency Motion to Strike and Deny.” This document stated that Parent’s previous filing was not intended to be Parent’s substantive response to the District’s Motion to Dismiss.
On October 27, 2025 Rockland filed its Opposition to Parent’s Motion to Strike Settlement Communications. In its opposition, Rockland states that the district has already agreed and proposed to reimburse Parents for the independent educational evaluations which were the subject of Parent’s Hearing Request. It explained that it attached its Exhibit 11 in order to establish the precise amount of Parent’s reimbursement claims. Said Exhibit contains a redacted copy of an email from Parent’s advocate setting out the amounts Parent claimed to have already spent in securing the independent educational evaluations at issue as well as “advocate fees” in the amount of $4,400.00. Rockland pointed out that the BSEA is not bound by either the Federal or the Massachusetts Rules of Evidence and that the standard for admissibility of evidence at the BSEA is relevance and reliability. Rockland further states that the inclusion of the advocate’s email setting out the amount of Parent’s reimbursement claims is “necessary” for the Hearing Officer’s full consideration of Rockland’s Motion to Dismiss, as it is uncontroverted that the District has offered Parent the full amount of IEE reimbursement that she would be entitled to under the law, thus rendering any basis for hearing moot. Rockland reasserts its position from its Motion to Dismiss that non-attorney advocates fees are not available under the IDEA.
Also on October 27, 2025, Parent filed a document entitled “Parent’s Supplemental Response to District’s Submission Containing Settlement Communications.” This document reasserts the arguments made in Parent’s prior submission and requests that the Hearing Officer strike or disregard all portions of the District’s submission, including Exhibit 11, that derive from or reference these settlement communications.
Parent did not file a response to Rockland’s Motion to Dismiss by the due date and the Hearing Officer’s assistant contacted the advocate to inquire as to whether he intended to file a response. She informed him that the Hearing Officer intended to rule on both Motions simultaneously and that he could have a one-day extension to file his response. Parent’s advocate ultimately filed a document entitled “Parent’s Opposition to Rockland Public School’s Motion to Dismiss and Request to Strike or Disregard Settlement Communications. The response in large part reiterated Parent’s prior position with respect to its request that settlement communications be stricken from Rockland’s Motion and exhibits. It states that Parent’s claims fall within the BSEA’s jurisdiction and presents live disputes regarding evaluation obligations, access to an IEE and appropriate relief. Parent challenges Rockland’s failure to “timely pursue comprehensive reevaluations and to fund/authorize IEEs as required when the District misses timelines or when parents disagree with District evaluations.” It alleges that there are factual disputes pertaining to an FBA and the “chronology of communication and obligations” which require a hearing and not dismissal. The response asserts that the declaratory and equitable relief, sought by Parent including reimbursement of reasonable advocacy expenses and independent evaluation expenses are with the “BSEA’s Remedial Authority.”
Neither party has requested a hearing on the above Motions. Because I find that neither testimony nor oral argument would advance the Hearing Officer’s understanding of the issues involved, this Ruling is issued without a hearing, pursuant to Bureau of Special Education Appeals Hearing Rule VII(D).
For the reasons set forth below, the District’s Motion to Dismiss is ALLOWED with prejudice.
RELEVANT FACTS:
For the purposes of this Motion, I must take as true the assertions set out in the Parent’s Hearing Request. [1] Student is a six-year old student who is eligible for special education services. He has multiple disabilities. His triennial reevaluation was due on September 8, 2025. As of that date, Rockland had not provided a consent form to Parent for the reevaluation. On September 15, 2025, Parent’s advocate, Adam Tiro, requested public funding for independent evaluations, including neuropsychological, educational, occupational therapy, physical therapy, speech and language, and social emotional assessments. Rockland issued a consent form for its reevaluations on September 18, 2025. Parent signed and returned the consent form on September 23, 2025 and reiterated her request for an IEE. The District filed a Request for Hearing on September 29, 2025 with respect to Parent’s request for independent evaluations. On October 9, 2025, Rockland withdrew its Request for Hearing and offered to fund the neuropsychological evaluation at the “state rate” Parent had already secured and scheduled an independent neuropsychological evaluation with a private provider.
Later on October 9, 2025 Parent filed a Request for Hearing which resulted in the action before me. In it, Parent seeks declaratory relief confirming the right to an independent educational evaluation at public expense without limitation to “state rate”, as a result of Rockland’s procedural and substantive violations. In additional to “a declaratory finding”, Parent’s Hearing request seeks funding of independent neuropsychological, occupational therapy, physical therapy, speech and language, and social emotional evaluations at “full private rate, without limitation to the state rate.” Additionally, Parent seeks reimbursement for reasonable advocacy expenses incurred due to the District’s alleged noncompliance. In an October email from Parent’s advocate to Rockland’s attorney, Parent’s advocate listed the amounts Parent Has paid/will be paying out of pocket for IEEs as follows: “Neuropsych – $2,875 (no insurance coverage); OT – co pay $45 (covered by insurance); PT – co pay $45 (covered by insurance); SPL (sic) co pay $45 (covered by insurance). In addition, he indicated that Parent had incurred advocate fees in the amount of $4400. (Rockland’s Motion to Dismiss, Exhibit 11).
In an N1 dated October 17, 2025, Rockland assented to Parent’s request for reimbursement of the following independent educational evaluations upon documentation evidencing the invoice and payment for the following: neuropsychological evaluation: $2,875; occupational therapy evaluation, co-pay: $45.00; physical therapy evaluation, co-pay: $45.00; speech and language evaluation, co-pay: $45.00 (request total: $3,010.00) (See Rockland’s Motion to Dismiss, Exhibit 12).
POSITIONS OF THE PARTIES
Rockland’s Position
Rockland argues that Parent’s claims should be dismissed int their entirety because there is no existing dispute, as Rockland has agreed to reimburse Parent for four of the five requested IEEs and Parent has agreed for Rockland to conduct its own FBA[2] before any further independent FBA request is made. It further argues that Parent’s claim for “declaratory” relief is outside of the jurisdiction of the BSEA. Finally, it argues that Parent’s claim for “advocacy fees” are barred by law.
Parent’s Position
Parent argues that there are contested facts which require an evidentiary hearing including “the scope of parental consent regarding an FBA[3] and the chronology of communication and obligations.” She also argues that declaratory and equitable relief and reimbursement of reasonable advocacy expenses are within the BSEA’s remedial authority.
PARENT’S “EMERGENCY MOTION TO STRIKE, DENY, AND FOR PROTECTIVE RELIEF REGARDING SETTLEMENT COMMUNICATIONS”
There is no mechanism for filing an “emergency motion” before the BSEA. When a party files a Motion, the opposing party is permitted to file a response within seven calendar days, in accordance with BSEA Hearing Rule VI(C). Although Parent requested that the BSEA rule on its “emergency motion” prior to ruling on Rockland’s Motion to Dismiss, she provided no compelling reason for doing so and in the interest of administrative efficiency, the Rulings are considered simultaneously.
Parent argues that Rockland improperly included “settlement communications” in its Motion to Dismiss and exhibits, that settlement communications are inadmissible in BSEA proceedings, and asks the BSEA to strike “all references to, quotations from, or exhibits reflecting settlement discussions – including any mention of proposed costs, terms, or negotiations.” Parent cites to Rule 408 of the Federal Rules of Evidence and the BSEA decision In re: Student & Springfield Public Schools, BSEA #2309351 (January 25, 2024) in support of her position. Parent asks the BSEA to deny Rockland’s Motion to Dismiss as “procedurally improper and prejudicial because it relies on confidential settlement communications and inadmissible material; “strike from the record all references to or exhibits containing settlement discussions contained in Rockland’s filing; and enter a protective order precluding any future references to or exhibits containing settlement discussions contained in the District’s filing. Parent does not specify as to which exhibits it is objecting or what references it seeks to have stricken from the record.
Rockland filed its Opposition to Parent’s Motion to Strike Settlement Communications on October 27, 2025. In its opposition Rockland argues that it has already agreed and proposed to reimburse Parent for the requested independent evaluations and that evidence of Parent’s claims for IEE reimbursement and the District’s proposal to provide the reimbursement is relevant, reliable and necessary. Rockland further asserts that the BSEA is not bound by the Federal or Massachusetts Rules of Evidence but rather, the general standard for admissibility at the BSEA is relevance and reliability. It argues that “While relevancy and reliability is the standard of admissibility for all evidence in BSEA proceedings … relevant evidence will be excluded ‘if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.’” In re: Springfield Public Schools, Ruling on Springfield Public Schools’ Motion to Recuse Hearing Officer, BSEA No. 2309351 (Aug. 29, 2023) Rockland continues that the advocate’s email listing the amount of Parent’s reimbursement claims, including claims for IEEs and “advocate fees” in the amount of $4,400.00 is necessary evidence for the Hearing Officer’s consideration of its Motion to Dismiss; this is because it is uncontroverted that the District has offered Parent the full amount that she would be entitled to under the law for the IEEs, thus rendering any basis for hearing moot. Further, Rockland states that the correspondence between the Parties in which Parent’s advocate listed the actual amounts Parent claims to have expended for the IEEs and “advocate fees” did not represent a settlement or compromise, but simply a list of the amounts expended. Rockland further argues that the document submitted as Exhibit 11 is not prejudicial to either party. and is necessary to show that Parent has requested “advocate fees” which are clearly not provided for under the IDEA.
Parent filed a “Supplemental Response to District’s Submission Containing Settlement Communications” on October 28, 2025. It argues that Exhibit 11 of Rockland’s Motion to Dismiss improperly references and relies upon communications that were part of a settlement discussion. Parent’s response again cites to Rule 408 of the Federal Rules of Evidence and asks that the Hearing Officer strike or disregard all portions of Rockland’s Motion that “derive from or Ference these settlement communications”. On October 28, Parent filed a Motion to Enlarge Time to Respond to District’s Motion to Dismiss arguing that Parent cannot fairly or properly respond to the Motion to Dismiss until the Hearing Officer determines whether the challenged settlement communications will remain in the record. On October 28, 2025 the Hearing Officer ruled that Parent could have until October 29, 2025 to respond to the Motion to Dismiss, due to the advocate’s misunderstanding of the response timelines, and confirmed that the Motions would be addressed simultaneously.
Ruling on Parent’s “Emergency Motion to Strike, Deny, and For Protective Relief Regarding Settlement Communications.”
After careful consideration of the Parties’ arguments, I hereby Deny Parent’s Motion for the following reasons. First, although BSEA Hearing Officers occasionally reference the Federal Rules of Evidence as guidance, the BSEA is not bound by the federal or state rules of evidence. (See M.G.L. c. 30A, § 11(2)) The standard for admissibility of evidence at the BSEA is relevance and reliability.[4] In this case, Exhibit 11 consists of the advocate’s listing of Parent’s out-of-pocket expenses with respect to her request for independent educational evaluations. There is no reference to offers made by either party or to compromises in position or negotiations between the parties. It is simply a list.
34 CFR 300.502(1)(3)(ii) sets forth the terms under which parents are entitled to independent education evaluations at public expense. Public expense means that the public agency either pays for the full cost of the evaluation or ensures that the evaluation is otherwise provided at no cost to a parent. (Id.) Exhibit 11 is highly relevant and necessary evidence, as, coupled with Exhibit 12 of Rockland’s Motion to Dismiss, it shows that Rockland has proposed reimbursing Parent for the full cost of the evaluations, and as such, the evaluations will be provided at no cost to the Parent. The document also demonstrates that Parent has requested advocacy fees, which are not available under the IDEA. This information is crucial to determining whether Parent’s Hearing Request states a claim for which relief can be provided by the BSEA. If the BSEA were to ignore this important evidence, it would hold an entire hearing before ultimately learning that there was no remaining dispute over which it has jurisdiction.
LEGAL STANDARD FOR MOTION TO DISMISS:
Hearing Officers are bound by the BSEA Hearing Rules for Special Education Appeals (Hearing Rules) and the Standard Rules of Adjudicatory Practice and Procedure, 801 Code Mass Regs 1.01. Pursuant to Rule XVII A and B of the Hearing Rules and 801 CMR 1.01(7)(g)(3), a hearing officer may allow a motion to dismiss if the party requesting the hearing fails to state a claim upon which relief can be granted. Specifically, a motion to dismiss should be granted only if the party filing the appeal can prove no set of facts in support of his or her claim that would entitle him or her to relief that the BSEA has authority to order. That is, a hearing officer may dismiss a case if he or she cannot grant relief under either the federal or state special education statutes or the relevant portions of Section 504 of the Rehabilitation Act, after considering as true allegations made by the party opposing dismissal and drawing all reasonable inferences in his/her favor.[5]
To survive a motion to dismiss, there must exist “factual ‘allegations plausibly suggesting (not merely consistent with)’ an entitlement to relief.”[6] 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.”[7] These “[f]actual allegations must be enough to raise a right to relief above the speculative level.”[8]
JURISDICTION OF THE BSEA
The BSEA has limited subject matter jurisdiction. 20 U.S.C. § 1415(b)(6) grants the Bureau of Special Education Appeals (BSEA) jurisdiction over timely filed complaints by a parent/guardian or a school district “with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child.”[9] In Massachusetts, a parent or a school district, “may request mediation and/or a hearing at any time on any matter[10] 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.”[11] The BSEA has the authority to resolve educational disputes pursuant to Massachusetts state law M.G.L. c. 71B (popularly known as Chapter 766), and its implementing regulations, 603 CMR 28.00. (emphasis added) (See also Hearing Rules for Special Education Appeals.) The BSEA has jurisdiction to resolve educational disputes under federal law as well, in accordance with 20 U.S.C. 1401 et seq. (the Individuals with Disabilities Education Act, “IDEA”), 29 U.S.C. 794 (Section 504 of the Rehabilitation Act of 1973) and the regulations promulgated thereunder, 34 C.F.R. Part 300 and 34 C.F.R. Part 104 respectively.
However, the BSEA “can only grant relief that is authorized by these statutes and regulations, which generally encompasses orders for changed or additional services, specific placements, additional evaluations, reimbursement for services obtained privately by parents or compensatory services.”[12]
APPLICATION OF LEGAL STANDARDS:
In evaluating the Motion to Dismiss under the legal standards set forth above, I take as true allegations, as well as any inferences that may be drawn from them, in the Parent’s favor, and deny dismissal if these allegations plausibly suggest an entitlement to relief.[13] Parent’s first claim seeks declaratory relief. The BSEA does not have jurisdiction to grant declaratory relief. Parent has not cited to any authority stating that declaratory relief is available at the BSEA and I am aware of none. Further, Parent seeks declaratory relief in connection to her claim seeking to affirm her right to IEEs at public expense “without limitation to state rate”. Rockland has proposed reimbursing Parent for the funds she has expended for IEEs, ending the dispute between the Parties with respect to the reimbursement issue. The BSEA may not render decisions where there is no live controversy between the parties such that the case becomes moot.[14]Thus, given the BSEA’s lack of jurisdiction to issue declaratory relief and the lack of a current dispute regarding Parent’s entitlement to reimbursement for the IEEs at issue, BOTH claims are Dismissed with Prejudice.
The third and final request for relief is for reimbursement to the Parent for reasonable “advocacy expenses”. Although the IDEA provides for the recovery of attorneys’ fees to prevailing parties, there is no provision for the payment of the fees of an advocate. [15]Parent’s claims for “advocacy fees” must be dismissed a as the IDEA does not allow for payment of fees to non-attorney advocates and the BSEA has no jurisdiction to award such fees
ORDER:
The District’s Motion to Dismiss is ALLOWED with prejudice.
So Ordered by the Hearing Officer,
/s/ Catherine Putney-Yaceshyn
Catherine Putney-Yaceshyn
Dated: November 4, 2025
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
EFFECT OF BUREAU DECISION AND RIGHTS OF APPEAL
Effect of the Decision
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. Accordingly, the Bureau cannot permit motions to reconsider or to re-open a Bureau decision once it is issued. Bureau decisions are final decisions subject only to judicial 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. Rather, a party seeking to stay the decision of the Bureau must 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,” during the pendency of any judicial appeal of the Bureau decision, 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 during the pendency of judicial proceedings must seek a preliminary injunction ordering such a change in placement from the court having jurisdiction over the appeal. Honig v. Doe, 484 U.S. 305 (1988); Doe v. Brookline, 722 F.2d 910 (1st Cir. 1983).
Compliance
A party contending that a Bureau of Special Education Appeals decision is not being implemented may file a motion with the Bureau of Special Education Appeals contending that the decision is not being implemented and setting out the areas of non-compliance. The Hearing Officer may convene a hearing at which the scope of the inquiry shall be limited to the facts on the issue of compliance, facts of such 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 decision of 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 of the Bureau decision. 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).
ConfidentialityIn order to preserve the confidentiality of the student involved in these proceedings, when an appeal is taken to superior court or to federal district court, the parties are strongly urged to file the complaint without identifying the true name of the parents or the child, and to move that all exhibits, including the transcript of the hearing before the Bureau of Special Education Appeals, be impounded by the court. See Webster Grove School District v. Pulitzer Publishing Company, 898 F.2d 1371 (8th. Cir. 1990).
If the appealing party does not seek to impound the documents, the Bureau of Special Education Appeals, through the Attorney General’s Office, may move to impound the documents.
Record of the Hearing
The Bureau of Special Education Appeals will provide an electronic verbatim record of the hearing to any party, free of charge, upon receipt of a written request. Pursuant to federal law, upon receipt of a written request from any party, the Bureau of Special Education Appeals will arrange for and provide a certified written transcription of the entire proceedings by a certified court reporter, free of charge.
[1] See Blank v. Chelmsford Ob/Gyn, P.C., 420 Mass. 404, 407 (1995).
[2] Parent’s Hearing Request does not contain any reference to a FBA. (See Parent’s Hearing Request)
[4] See In re: Springfield Public Schools, Ruling on Springfield Public Schools’ Motion to Recuse Hearing Officer, BSEA No. 2309351 (Mitchell Aug. 29, 2023) . See also BSEA Rule IX(B).
[5] See Caleron-Ortiz v . LaBoy-Alverado , 300 F.3d 60 (1 st Cir. 2002);[5] Whitinsville Plaza, Inc. v. Kotseas , 378 Mass. 85, 89 (1979); Nader v. Citron , 372 Mass. 96, 98 (1977).
[6] Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)).
[7] Blank v. Chelmsford Ob/Gyn, P.C., 420 Mass. 404, 407 (1995).
[8] Golchin v. Liberty Mut. Ins. Co., 460 Mass. 222, 223 (2011) (internal quotation marks and citations omitted).
[9] See 34 C.F.R. §300.507(a)(1).
[10] Limited exceptions exist that are not here applicable.
[11] 603 CMR 28.08(3)(a).
[12] In Re: Georgetown Pub. Sch., BSEA #1405352 (Berman, 2014).
[13] Blank, 420 Mass. at 407.
[14] . See Thomas R.W. ex rel. Pamela R. v. Mass. Dept. of Education, 130 F.3d 477, 479 (1st Cir. 1997), and cases cited therein.
[15] See 20 U.S.C. § 1415 (i)(3)(B)(i); 34 CFR 300.517.