COMMONWEALTH OF MASSACHUSETTS
DIVISION OF ADMINISTRATIVE LAW APPEALS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Student v. Springfield Public Schools
BSEA #2414829
RULING ON THE SPRINGFIELD PUBLIC SCHOOLS’ MOTION TO DISMISS POLICY CLAIMS
AND
THE SPRINGFIELD PUBLIC SCHOOLS’ MOTION FOR PROTECTIVE ORDER
This matter comes before the Hearing Officer on Springfield Schools’ Motion to Dismiss Policy Claims filed on July 8, 2024 as part of the Springfield Public Schools’ Response to Student’s Hearing Request and Amended Hearing Request (Motion to Dismiss Policy Claims). In it, the District seeks to dismiss Parent’s claims relative to the Springfield Public Schools’ (Springfield or the District) “policy around special education eligibility.” According to Springfield, in Parent’s Motion to Amend the Hearing Request filed on June 30, 2024, Parent
“attaches emails from the Director which [she] seems to believe supports her position that the District has [an] incorrect policy relative to not finding students eligible for special education if they only require related services. Not only does the District not have such a policy but the BSEA does not have jurisdiction over broad policy issues. The BSEA has jurisdiction only over the provision of FAPE to a specific student. In this case, the District is in fully[sic] procedural compliance relative to the steps taken to consider Student’s special education eligibility. The fact that the Student disagrees with the finding of no eligibility, while she is correct to appeal that determination to the BSEA, does not implicate District policies, especially as there are none. The District adheres only[] the IDEA and state special education laws in all areas related to special education. For these reasons, the District seeks dismissal of the policy issue raised in Student’s amended hearing request.”
On September 3, 2024, the District filed Springfield Public Schools’ Motion for Protective Order (Motion for Protective Order) seeking “a protective order relative to [Parent’s] documents requests nos. 10, 11, 12, 13, 17, 19, 23, 25, 27, 29 and 30, and request for interrogatories nos. 2, 3, 4, 7, 10, 11, 13, 15, 16, 20, 21, 22 and 24 and all subparts of each of these requests.” As the basis for the District’s objection and request for protective order relative to all of these document requests and interrogatories, Springfield asserts that these discovery requests
“seek procedural and policy information not specific to [Student]. It is clear and undisputed that the BSEA does not have jurisdiction over school policy and procedure….Further, the initial hearing request and amended hearing request are limited in scope to whether the District erred in finding that [Student] was not eligible to receive special education services but that, rather her needs of transportation and counseling could be addressed through a 504 plan. That issue is now moot as the District has convened a Team meeting, found [Student] eligible and is in the process of issuing an IEP. Therefore, to now serve discovery on the District on an issue that is now resolved is concerning.”
On September 13, 2024, Parent amended her Hearing Request, again alleging additional substantive and procedural denials of a FAPE relative to the District’s August 2024 IEP proposal as well as alleged child find violations, but withdrawing its eligibility claims. On October 7, 2024, Parent filed Student’s Response To District’s Motion For Protective Order stating that “[i]n light of the amended hearing request removing the mooted eligibility claims, the Student hereby withdraws the following discovery requests: Document Requests: 10, 11, 13, 17, 19, 23, 25; Interrogatories: 2, 3, 4, 7, 10, 11, 13, 15, 21, 22.” As such, remaining at issue are document requests nos. 12, 27, 29 and 30 and request for interrogatories nos. 16, 20, and 24.
Because neither testimony nor oral argument would advance the Hearing Officer’s understanding of the issues involved, this Ruling is issued without a hearing, pursuant to Bureau of Special Education Appeals Hearing Rule VII(D).
For the reasons set forth below, the District’s Motion to Dismiss Policy Claims is hereby ALLOWED. The District’s Motion for Protective Order is ALLOWED, in part.
PROCEDURAL HISTORY AND RELEVANT FACTS[1]:
- Student is an 8th grade student at Kiley Middle School in Springfield, Massachusetts.
- On or about May 23, 2024, Student was found eligible for a 504 Plan based on her disability, to wit: anxiety.
- On June 12, 2024, Student was found ineligible for special education and related services.
- On June 14, 2024, Parent filed for a due process hearing with the Bureau of Special Education Appeals (BSEA) challenging the finding of ineligibility. Subsequently, Parent amended the hearing request and requested an Extended Evaluation.
- On June 20, 2024, counsel for the Student received an email from the District’s Chief of Special Education and Related Services stating the
“IEP Team determined that [Student] does not require specialized instruction; therefore, she was found ineligible and referred to the 504 team. The District understands you are appealing the Finding of No Eligibility. We would like to reconvene as a team to discuss your concerns, along with reviewing any completed IEEs, when staff and students return in August. The District is proposing the IEP team reconvene on … August 27, 2024 ….A Team meeting invitation has been sent home. The team cannot meet prior to June 28th as staff and students are out on summer vacation.”
According to Parent, this communication “unequivocally [stated] that it is the District’s position that a child who requires related services, but not specially designed instruction cannot be found eligible for an IEP,” and
“[t]his systemic misinterpretation of special education eligibility standards, now confirmed as official District policy, is directly relevant to [Student’s] case, as the District has denied her an IEP despite finding that she requires related services to access the general curriculum. The District’s unlawful policy, likely affecting a significant number of current and former students, threatens to deprive [Student] of her individual rights under the IDEA and MGL c. 71B on an ongoing basis….”
- On June 30, 2024, Parent amended her Hearing Request “to include the District’s policy and its implications for [Student]” adding “requested relief items, including an order for an extended evaluation and a ruling on the District’s policy.”
- On July 24, 2024, the Hearing Officer issued Ruling on Springfield Public Schools Motion for Summary Judgment finding, in part that
“for a related service to be considered special education, its provision must be necessary for Student to access general education in a way that allows a student to develop her potential. This requires an assessment of Student’s ability or inability to make progress on standardized, criterion-referenced, or curriculum-based assessments, as well as her potential failure to progress to the next grade level at the end of the school year without the transportation and counseling services.”[2]
- On August 24, 2024, Parent served interrogatories and requests for production of documents on the District, including, in relevant part, the following:
Document Request No. 12: Training materials used by the District to train staff on special education eligibility determination and IEP development within the past three years, including presentation slides; handouts; training agendas; and any follow-up materials or resources provided to staff.
Document Request No. 27: All documents related to the District’s Child Find procedures, including: written policies and procedures; training materials for staff on Child Find obligations; screening tools or checklists used to identify students who may need special education services; and any reports or data on the District’s Child Find activities from the past three years.
Document Request No. 29: Any documents related to the District’s procedures for identifying and evaluating students with high rates of absenteeism or suspected emotional disabilities, including: policies or guidelines for addressing chronic absenteeism; any screening tools specifically used for students with attendance issues or emotional concerns; and training materials for staff on recognizing signs of emotional disabilities in students.
Document Request No. 30: All documents related to the District’s policies, practices, and procedures for providing special transportation services, including door-to-door transportation, to students with and without IEPs, including but not limited to: any written policies or guidelines regarding eligibility for door-to-door transportation; documents related to the creation and approval of content for the Transportation section of the District’s website, including the Q&A about special transportation; records of any instances in the past three years where door-to-door transportation was provided to students without IEPs, including the rationale for these decisions; any correspondence or memos discussing the provision of door-to-door transportation through 504 plans versus IEPs; documents related to any changes made to the District’s policies or practices regarding special transportation provision since the publication of the information on the website; and any training materials or guidelines provided to staff regarding the provision of special transportation services.
Request for Interrogatory No. 16: Describe the District’s policies and procedures for determining and providing compensatory services when there has been a delay in identifying a student as eligible for special education. How would these apply in [Student’s] case?
Request for Interrogatory No. 20: Explain the District’s process for addressing bullying incidents and their potential impact on a student’s educational needs. How does the District consider the impact of bullying incidents on a student’s potential need for special education services? Describe any instances in the past three years where bullying incidents led to a special education referral or change in services. Identify and describe any oral discussions, meetings, or communications among staff and/or administrators about how bullying incidents involving [Student] have been addressed and how they relate to her educational needs.
Request for Interrogatory No. 24: Describe in detail the District’s policies, practices, and procedures for providing special transportation services, including door-to-door transportation, to students with and without IEPs, including without limitation: Explain the District’s policy and practice for providing door-to-door transportation to students, including how this aligns with the statement on the District’s website that “Eligibility for door-to-door transportation is based upon a student’s IEP”. Describe any instances in the past three years where the District has provided door-to-door transportation to students without IEPs. For each instance, explain the rationale for providing this service outside of an IEP. Explain how the District reconciles its position that [Student] can receive door-to-door transportation through a 504 plan with the statement on its website indicating this service is only available through an IEP. Identify all individuals involved in creating and approving the content for the Transportation section of the District’s website, including the Q&A about special transportation. Describe any discussions or communications among staff about the accuracy of this information; Describe any changes made to the District’s policies or practices regarding special transportation provision since the publication of this information on the website.
- On August 29, 2024, Springfield convened an IEP Team meeting. The Team found Student eligible for special education services based on her emotional disability. The IEP provided for counselor consultation 1×10 minutes/cycle, a math goal with attendant math skills services within the general education setting 1×30 minutes/cycle and counseling services 1×16.25 minutes/cycle. The proposed placement is full inclusion.
- On September 3, the District served its Motion for Protective Order.
- On September 13, 2024, Parent amended her Hearing Request, again alleging additional substantive and procedural denials of a FAPE relative to the August 2024 IEP proposal as well as alleged child find violations. This amended request withdrew eligibility claims that had been mooted by the District’s August 29 reversal of its June 12 finding of ineligibility.
LEGAL STANDARDS AND DISCUSSION:
- Motion to Dismiss
- Legal Standard
Pursuant to Rule XVII A and B of the Hearing Rules and 801 CMR 1.01(7)(g)(3)[3], a hearing officer may allow a motion to dismiss if the party requesting the hearing fails to state a claim upon which relief can be granted. These rules are analogous to Rule 12(b)(6) of the Federal Rules of Civil Procedure. As such, hearing officers have generally used the same standards as the courts in deciding motions to dismiss for failure to state a claim. To survive a motion to dismiss, there must exist “factual ‘allegations plausibly suggesting (not merely consistent with)’ an entitlement to relief.”[4] 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.”[5] These “[f]actual allegations must be enough to raise a right to relief above the speculative level.”[6]
- 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.”[7] In Massachusetts, a parent or a school district, “may request mediation and/or a hearing at any time on any matter[8]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.”[9] Nevertheless, it is well established that matters that come before the BSEA must involve a live or current dispute between the Parties.[10] 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.”[11]
- Application of Legal Standards:
Parent has withdrawn her claim relative to Student’s eligibility. Thus, to the extent that her claim that the District has “an official policy” that “a child who requires related services, but not specially designed instruction cannot be found eligible for an IEP” relates to Student, such claim is now moot. [12] To the extent that Parent’s claim extends to a class of people beyond Student, such claim is dismissed with prejudice for lack of subject matter jurisdiction.[13]
- Discovery
- Legal Standards:
Rule V of the BSEA Hearing Rules governs the discovery process before the BSEA. Rule V(A) advises that “the parties are encouraged to exchange information cooperatively and by agreement prior to the hearing.” Additionally, parties can request of other parties that they produce documents or answer up to 25 interrogatories within thirty (30) calendar days of being served such requests, unless a Hearing Officer orders otherwise.[14] Where the information or the documents requested are “not subject to any sort of privilege, the accessibility of the documents requested and their relevance to the dispute may militate in favor or against production.”[15] Specifically, the Massachusetts Rules of Civil Procedure expatiates further as to the scope of discovery:
“[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim of defense of the party seeking discovery or to the claim or defense of any party…It is not ground for objection that the information sought will be inadmissible at the trial if…[it] appears reasonably calculated to lead to the discovery of admissible evidence.”[16]
The parallel Federal Rule permits discovery of
“…any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues…, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information…need not be admissible in evidence to be discoverable.”[17]
Objections to any discovery requests can be made within ten (10) calendar days of service of the request, or parties can move for a protective order within that timeframe as well.[18]
- Application of Legal Standards:
Whether Parent’s discovery requests are relevant, and hence discoverable, depends on the issues in the instant dispute. Here, Parent’s Hearing Request, as amended, raises the following issues[19]:
- Whether the District violated the IDEA by:
- Failing to identify [Student] as a student potentially in need of special education services during the 2023-2024 school year, despite her excessive absences and known social conflicts, in violation of the IDEA’s child find provision;
- Failing to develop any measurable annual goals or short-term objectives for [Student]’s IEP, as required by 20 U.S.C. § 1414(d)(1)(A)(i)(II) and 603 CMR 28.05(4)(a);
- Failing to consider extended school day services as part of [Student]’s IEP as necessary to provide [Student] with access to academic support from her teachers;
- Failing to develop appropriate transition goals and services for [Student], who is 14 years old, as required by G.L. c. 71B s. 2;
- Making a placement decision before [Student]’s IEP was fully developed, in violation of 603 CMR 28.05(6).
- Failing to consider all aspects of [Student]’s IEP in determining placement, in violation of 603 CMR 28.06(2)
- Failing to allow [Student]’s mother to participate in the placement determination process, in violation of 34 CFR 300.116(a)(1) and 603 CMR 28.06(2);
- Refusing to consider information provided by [Student]’s mental health clinician regarding her needs and appropriate placement;
- Refusing to permit the Team to consider placement options, despite uncontested evidence provided to the team by [Student]’s mental health clinician that the current placement at Kiley Middle School is triggering [Student]’s anxiety and impeding her ability to access her education, in violation of 603 CMR 28.06(2)(b);
- Failing to consider the potential harmful effects of [Student]’s current placement, as required by 603 CMR 28.06(2)(b);
- Failing to write an IEP that describes the special education and related services that [Student] requires and includes all elements required under federal and state law, in violation of 603 CMR 28.05(4).
- Failing to provide [Student]’s mother with a proposed IEP immediately following its development, or within 45 school days after receiving [Student]’s mother’s consent to evaluate [Student], as required by 603 CMR 28.05(7);
- Failing to ensure that [Student]’s IEP is “accessible to each regular education teacher, special education teacher, related services provider, and any other service provider who is responsible for its implementation” in violation of 34 CFR s. 300.323(d)(1);
- Failing to ensure that each of [Student]’s teachers is informed of his or her responsibilities related to the implementation of [Student]’s IEP in 34 CFR s. 300.323(d)(2)(i);
- Failing to inform each of [Student]’s teachers about the specific accommodations, modifications, and supports that must be provided for [Student] in accordance with her IEP, in violation of 34 CFR s. 300.323(d)(2)(ii);
- Failing to implement agreed-upon accommodations, including the provision of a laptop for home use and a colored card system for breaks, as specified in [Student]’s 504 plan and agreed upon at the August 29, 2024 eligibility meeting.
- Failing to provide [Student] with a free appropriate public education within the meaning of the IDEA, including but not limited to:
- Failing to provide consistent access to counseling support throughout the school day, as agreed upon in the August 29, 2024 eligibility meeting, in violation of 34 CFR § 300.34(c)(2) which defines counseling services as a related service under IDEA.
- Failing to provide consistent access to schoolwork during disability-related absences, impeding [Student]’s ability to make progress in the general education curriculum, in violation of 34 CFR § 300.101(c) which requires FAPE to be available to any individual child with a disability who needs special education and related services, even if the child has not failed or been retained in a course or grade and is advancing from grade to grade.
- Whether the District violated Section 504 of the Rehabilitation Act by:
- Failing to identify [Student] as a student potentially in need of disability-related modifications and related services to allow her to have an opportunity to participate in and benefit from SPS’s middle school program during the 2023-2024 school year not less than that which SPS provides to [Student]’s non-disabled peers, despite [Student]’s excessive absences, known social conflicts, and her school counselor’s documented concern that [Student]’s absences may be a result of an emotional condition, in violation of Section 504’s child find provision (34 CFR § 104.35(a)).
- Failing to comply with 34 CFR § 104.35(c) by not drawing upon information from a variety of sources, not documenting and carefully considering all relevant information, and not ensuring that the placement decision was made by a knowledgeable group of persons considering all placement options;
- Failing to protect [Student] from disability-based harassment and bullying, creating a hostile educational environment (34 CFR § 104.4(b)(1)(i); 28 CFR § 35.130(b)(1)(i));
- Failing to provide reasonable accommodations, including consideration of alternative school placements, resulting in [Student]’s de facto exclusion from school, in violation of Section 504’s and the ADA’s requirement to provide equal access to educational programs and services (34 CFR § 104.4(b)(1)(ii); 28 CFR § 35.130(b)(1)(ii)); [emphasis in original]
- Failing to make reasonable modifications to policies, practices, or procedures (specifically, the school assignment policy) to avoid discrimination on the basis of disability, as required by the ADA, despite clear evidence that Kiley Middle School is a source of significant anxiety and trauma triggers for [Student] (28 CFR § 35.130(b)(7)(i)); [emphasis in original]
- Effectively excluding [Student] from accessing her education by:
- Exacerbating [Student]’s anxiety to the point where she is unable to attend school regularly, as evidenced by her multiple absences in the first two weeks of the 2024-2025 school year;
- Primarily responding to [Student]’s anxiety by requesting that she be removed from school, rather than providing appropriate in-school supports;
- Creating a cumulative effect of failures that has resulted in [Student] being unable to access her education, in direct violation of Section 504’s and the ADA’s requirements.
- Failing to provide [Student] a free appropriate public education within the meaning of Section 504 by:
- Not evaluating [Student] for a suspected disability and providing needed accommodations and related services during the 2023-2024 school year (Section 504 Child Find).
- Not implementing necessary accommodations and modifications, such as consistent access to counseling and self-regulation breaks, to manage the symptoms of her disabling condition and enable her school attendance;
- Denying her consistent access to schoolwork during disability-related absences; and
- Effectively excluding her from equal access to educational programs and services.
- If the answer to any of the above is affirmative, then whether Student is entitled to an extended evaluation, compensatory services, placement “at either Renaissance School or STEM Middle School, whichever is determined to be more appropriate based on [Student’s] needs and preference”, and/or whether Student is entitled to any other remedy?[1][1] If the parties object to this recitation of issues, they must indicate their objection in writing.
According to the District, documents requests nos. 12, 27, 29 and 30 and request for interrogatories nos. 16, 20, and 24 seek procedural and policy information not specific to Student. In response, Parent asserts that these discovery requests are relevant as Document Request No. 12 relates to claims regarding staff training on IEP development; Document Request No. 27 relates to Child Find claims; Document Request No. 29 relates to child find claims and claims regarding evaluation of students with attendance issues; Document Request No. 30 relates to claims regarding transportation services; Interrogatory Request No. 16 relates to claims regarding compensatory services; Interrogatory Request No. 20 relates to claims regarding bullying and its impact on educational needs; and Interrogatory Request No. 24 relates to claims regarding transportation services.
I find as follows:
- The District’s Objection to Document Request No. 12 is ALLOWED.
Document Request No. 12 seeks the following: Training materials used by the District to train staff on special education eligibility determination and IEP development within the past three years, including presentation slides; handouts; training agendas; and any follow-up materials or resources provided to staff.
The training of staff, including “training materials used by the District”, is irrelevant to any of the issues raised by Parent. Therefore, the District’s objection to Document Request No. 12 is ALLOWED.
- The District’s Objection to Document Request No. 27 is ALLOWED, in part.
Document Request No. 27 seeks the following: All documents related to the District’s Child Find procedures, including: written policies and procedures; training materials for staff on Child Find obligations; screening tools or checklists used to identify students who may need special education services; and any reports or data on the District’s Child Find activities from the past three years.
Parent does not allege that the District failed to follow its own Child Find Policies and Procedures when failing in its Child Find obligations toward Student. As such, any documents relating to the District’s Child Find Policies and Procedures are irrelevant. Similarly, the training of staff in child find activities is not relevant in the instant matter, nor are “any reports or data on the District’s Child Find activities from the past three years”, as these do not pertain specifically to Student. Therefore, such documents need not be produced. To the extent that there are any “screening tools or checklists used to identify students who may need special education services” that were utilized for Student (or that that District failed to utilize for Student), such are relevant and must be produced to Parent. Therefore, the District’s objection to Document Request No. 27 is ALLOWED, in part.
- The District’s Objection to Document Request No. 29 is ALLOWED, in part.
Document Request No. 29 seeks the following: Any documents related to the District’s procedures for identifying and evaluating students with high rates of absenteeism or suspected emotional disabilities, including: policies or guidelines for addressing chronic absenteeism; any screening tools specifically used for students with attendance issues or emotional concerns; and training materials for staff on recognizing signs of emotional disabilities in students.
Parent has alleged Child Find violations relating to Student’s absenteeism and anxiety. Hence, to the extent that there are any “screening tools specifically used for students with attendance issues or emotional concerns” that were utilized for Student (or that that District failed to utilize for Student), such are relevant and must be produced to Parent.
However, Parent does not allege that the District failed to follow its own procedures for identifying, evaluating, and addressing the needs of students with high rates of absenteeism or suspected emotional disabilities. As such, the District’s policies or guidelines for addressing chronic absenteeism are irrelevant and need not be produced. Similarly, the training of staff “on recognizing signs of emotional disabilities in students” is irrelevant and need not be produced. Therefore, the District’s objection to Document Request No. 29 is ALLOWED, in part.
- The District’s Objection to Document Request No. 30 is ALLOWED.
Document Request No. 30 seeks the following: All documents related to the District’s policies, practices, and procedures for providing special transportation services, including door-to-door transportation, to students with and without IEPs, including but not limited to: any written policies or guidelines regarding eligibility for door-to-door transportation; documents related to the creation and approval of content for the Transportation section of the District’s website, including the Q&A about special transportation; records of any instances in the past three years where door-to-door transportation was provided to students without IEPs, including the rationale for these decisions; any correspondence or memos discussing the provision of door-to-door transportation through 504 plans versus IEPs; documents related to any changes made to the District’s policies or practices regarding special transportation provision since the publication of the information on the website; and any training materials or guidelines provided to staff regarding the provision of special transportation services.
Although Parent alleges that the District failed to implement Student’s services, including transportation services, she does not allege that 2024 IEP failed to propose door-to-door transportation as a related service. As such, the documents sought in Document Request No. 30 are irrelevant. Therefore, the District’s objection to Document Request No. 30 is ALLOWED, and these documents need not be produced.
- The District’s Objection to Request for Interrogatory No. 16 is ALLOWED.
Request for Interrogatory No. 16 asks the District: Describe the District’s policies and procedures for determining and providing compensatory services when there has been a delay in identifying a student as eligible for special education. How would these apply in [Student’s] case?
Parent asks the BSEA to order compensatory services as a remedy in this matter. As compensatory relief, if found appropriate, will be determined by the Hearing Officer, any information relative to “District’s policies and procedures for determining and providing compensatory service” is irrelevant. Therefore, the District’s objection to Request for Interrogatory No. 16 is ALLOWED, and this information need not be provided.
- The District’s Objection to Request for Interrogatory No. 20 is ALLOWED, in part.
Request for Interrogatory No. 20 asks the District: Explain the District’s process for addressing bullying incidents and their potential impact on a student’s educational needs. How does the District consider the impact of bullying incidents on a student’s potential need for special education services? Describe any instances in the past three years where bullying incidents led to a special education referral or change in services. Identify and describe any oral discussions, meetings, or communications among staff and/or administrators about how bullying incidents involving [Student] have been addressed and how they relate to her educational needs.
To the extent that Parent alleges that the District has any information regarding “any oral discussions, meetings, or communications among staff and/or administrators about how bullying incidents involving [Student] have been addressed and how they relate to her educational needs”, such information is relevant and must be provided.
All other information relating to “the District’s process for addressing bullying incidents and their potential impact on a student’s educational needs,” the District’s perspective on “the impact of bullying incidents on a student’s potential need for special education services,” and/or a description of “any instances in the past three years where bullying incidents led to a special education referral or change in services” are irrelevant to the issues in this matter. Therefore, the District’s objection to Request for Interrogatory No. 20 is ALLOWED, in part.
- The District’s Objection to Request for Interrogatory No. 24 is ALLOWED.
Request for Interrogatory No. 24 asks the District: Describe in detail the District’s policies, practices, and procedures for providing special transportation services, including door-to-door transportation, to students with and without IEPs, including without limitation: Explain the District’s policy and practice for providing door-to-door transportation to students, including how this aligns with the statement on the District’s website that “Eligibility for door-to-door transportation is based upon a student’s IEP”. Describe any instances in the past three years where the District has provided door-to-door transportation to students without IEPs. For each instance, explain the rationale for providing this service outside of an IEP. Explain how the District reconciles its position that [Student] can receive door-to-door transportation through a 504 plan with the statement on its website indicating this service is only available through an IEP. Identify all individuals involved in creating and approving the content for the Transportation section of the District’s website, including the Q&A about special transportation. Describe any discussions or communications among staff about the accuracy of this information; Describe any changes made to the District’s policies or practices regarding special transportation provision since the publication of this information on the website.
As noted above, although Parent alleges that the District failed to implement Student’s services, including transportation services, she does not allege that 2024 IEP failed to propose door-to-door transportation as a related service. As such, the information sought in Request for Interrogatory No. 24 is irrelevant. Therefore, the District’s objection to Request for Interrogatory No. 24 is ALLOWED, and this information need not be provided.
ORDER:
The District’s Motion to Dismiss Policy Claims is ALLOWED, and Parent’s claims relative to the District’s alleged “official policy” that “a child who requires related services, but not specially designed instruction cannot be found eligible for an IEP” are hereby dismissed with prejudice.
The District’s Motion for Protective Order is ALLOWED, in part.
Specifically, the District’s objections to Document Request Nos. 12 and 30 are ALLOWED. In addition, the District’s objections to Request for Interrogatory Nos. 16 and 24 are ALLOWED
The District’s objections to Document Request Nos. 27 and 29 are ALLOWED, in part. Specifically, to the extent that there are any “screening tools or checklists used to identify students who may need special education services” or “any “screening tools specifically used for students with attendance issues or emotional concerns” that were utilized for Student (or that that District failed to utilize for Student), they must be produced to Parent.
The District’s objection to Request for Interrogatory No. 20 is also ALLOWED, in part. To the extent that Parent alleges that the District has any information regarding “any oral discussions, meetings, or communications among staff and/or administrators about how bullying incidents involving [Student] have been addressed and how they relate to her educational needs”, such information must be provided.
So ordered,
By the Hearing Officer,
/s/ Alina Kantor Nir
Alina Kantor Nir, Hearing Officer
October 10, 2024
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 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 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).
Confidentiality
In order to preserve the confidentiality of the student involved in these proceedings, when an appeal is taken to superior court or to federal district court, the parties are strongly urged to file the complaint without identifying the true name of the parents or the child, and to move that all exhibits, including the transcript of the hearing before the Bureau of Special Education Appeals, be impounded by the court. See Webster Grove School District v. Pulitzer Publishing
Company, 898 F.2d 1371 (8th. Cir. 1990). If the appealing party does not seek to impound the documents, the Bureau of Special Education Appeals, through the Attorney General’s Office, may move to impound the documents.
Record of the Hearing
The Bureau of Special Education Appeals will provide an electronic verbatim record of the hearing to any party, free of charge, upon receipt of a written request. Pursuant to federal law, upon receipt of a written request from any party, the Bureau of Special Education Appeals will arrange for and provide a certified written transcription of the entire proceedings by a certified court reporter, free of charge.
[1] The information in this section is drawn from the parties’ pleadings and is subject to revision in further proceedings.
[2] Internal citations omitted.
[3] 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.
[4] Iannocchino v. Ford Motor Co., 451 Mass. 623, 636 (2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)).
[5] Blank v. Chelmsford Ob/Gyn, P.C., 420 Mass. 404, 407 (1995).
[6] Golchin v. Liberty Mut. Ins. Co., 460 Mass. 222, 223 (2011) (internal quotation marks and citations omitted).
[7] See 34 C.F.R. §300.507(a)(1).
[8] Limited exceptions exist that are not here applicable.
[9] 603 CMR 28.08(3)(a).
[10] See In Re: Student v. Bay Path Reg’l Vocational Tech. High Sch., BSEA # 18-05746 (Figueroa, 2018).
[11] In Re: Georgetown Pub. Sch., BSEA #1405352 (Berman, 2014).
[12] See In Re: Student v. Bay Path Reg’l Vocational Tech. High Sch., BSEA # 18-05746 (Figueroa, 2018) (finding that matters that come before the BSEA must involve a live or current dispute between the Parties).
[13] See In Re: Quincy Public Schools And Department Of Elementary And Secondary Education (Ruling On Respondents’ Motions To Dismiss), BSEA #2408249 (Mitchell, 2024) (“As the BSEA’s enabling legislation specifically references ‘the child’ in the singular rather than plural, it is clear from this statute that the BSEA is only able to consider cases and claims on an individual student-specific basis, rather than cases or claims made on behalf of a group of students. Further, I agree with the decisions of prior hearing officers concluding the BSEA lacks jurisdiction over systemic or class claims, and I find their reasoning to be both sound and appropriate”) (citing to In Re: Holyoke Pub. Schools and Jay, BSEA #1800619 (Oliver, 2018)).
[14] See Rule V(B)(1) and (2).
[15] In Re: Dorian and Waltham Public Schools (Ruling), BSEA # 17-02306 [23 MSER 142] (Reichbach, 2017).
[16] Mass. R. Civ. P. 26(b)(1).
[17] Fed. R. Civ. P. 26(b)(1).
[18] See BSEA Hearing Rule V(C).
[19] These are copied verbatim from Parent’s Amended Hearing Request.
[20] If the parties object to this recitation of issues, they must indicate their objection in writing.