COMMONWEALTH OF MASSACHUSETTS
DIVISION OF ADMINISTRATIVE LAW APPEALS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Student v. Springfield Public Schools
BSEA # 24-14829
RULING ON STUDENT’S MOTION FOR PARTIAL SUMMARY DECISION
This matter comes before the Hearing Officer on Student’s Motion For Partial Summary Decision (Parents’ Motion)[1] filed on July 9, 2024, in which Parents assert that the “material facts necessary to decide the issue of [Student’s] eligibility for special education are not in dispute, as evidenced by the Student’s Amended Hearing Request and the District’s Response,” and, therefore, Student is entitled to summary judgment as a matter of law on the issue of her eligibility for an Individualized Education Program (IEP). Specifically, Parents contend that the District agreed that Student meets the criteria for an emotional disability; requires counseling and specialized transportation as related services; and, these related services were determined necessary for Student to access
the general curriculum.[2] As such, “[u]nder the plain language of 603 CMR 28.05(2)(a)(1), these undisputed facts establish [Student’s] eligibility for special education, regardless of whether she requires specialized instruction,” because 603 CMR 28.05(2)(a)(1) “deliberately expands” eligibility criteria to include students who require related services to access the curriculum.
On July 10, 2024, Springfield Public Schools (Springfield or the District) filed Springfield Public Schools’ Opposition to Student’s Motion for Partial Summary Judgment (Opposition)[3] asserting that that there are genuine issues of fact in dispute in this case which require a full due process hearing. Specifically, the District argues that “the question of whether a Team made the correct eligibility determination within the context of an initial eligibility [sic] cannot be determined through summary judgment. Rather, the finder of fact must hear from Team members to understand the evaluative process that was undertaken.” In addition, according to the District, Springfield has agreed, for purposes of resolution, to write an Individualized Education Program (IEP) for the Student. Therefore, the relief sought through the motion for summary judgment is moot.
On July 16, 2024, Parents filed Student’s Reply To District’s Opposition To Motion For Partial Summary Decision (Reply) asserting, in part, that the District’s willingness to
“write an IEP” was “presented as a negotiating concession … rather than a formal finding of eligibility or a reversal of the District’s position on the legal standard for eligibility. As of the date of this filing, the Student has not received any formal notice that [Student] has been found eligible for special education services.”
Neither party has requested a hearing on the Motion. Because neither testimony nor oral argument would advance the Hearing Officer’s understanding of the issues involved, this Ruling is issued without a hearing, pursuant to Bureau of Special Education Appeals Hearing Rule VII(D).
For the reasons set forth below, Parents’ Motion is DENIED.
PROCEDURAL HISTORY AND RELEVANT FACTS:
The following facts are not in dispute and are derived from the Hearing Request, the District’s response thereto, Parents’ Motion, the District’s Opposition, Parents’ Reply, and all accompanying exhibits.
- Student is a rising 8th grade student at Kiley Middle School in Springfield, Massachusetts. She is currently a general education student who is supported by a 504 Plan which provides for “access to school counselor, as needed” and door-to-door transportation. (P-E)
- Student’s cognitive skills range from average to low average. Diagnostic assessments demonstrate that Student’s math skills are approximately at the 4th grade level, and reading skills are at grade level. On both the 2022 and 2023 Massachusetts Comprehensive Assessment System (MCAS) examination, Student partially met expectations on the Math and ELA portions of the assessment. (S-2)
- During the 2023-2024 school year, Student reported bullying incidents to the District, which were subsequently investigated. As most of the incidents occurred on the bus home from school, the District provided Student with door-to-door transportation. (S-2)
- Even with door-to-door transportation, Student accumulated approximately 90 absences during the 2023-2024 school year. Such attendance issues did not present during prior school years. (S-2)
- According to the District, Student’s progress has not been similar to her peers, as it has been impacted by her school attendance. (S-2)
- On or about April 7, 2024, Student’s court appointed educational advocate requested an initial special education eligibility evaluation. The District responded and completed a psychological assessment and Functional Behavior Assessment (FBA).
- On April 25, 2024, the District developed a safety/attendance plan for Student.
- On or about May 23, 2024, Student was found eligible for a 504 Plan based on her disability of anxiety. Specifically, the Team determined that Student’s
“anxiety significantly affects her ability to engage in learning activities. She experiences physical and somatic symptoms that interfere with her concentration and ability to come to school…. [Student’s] attendance and academic performance are notably affected by her anxiety, particularly during transportation to and from school. The anxiety she experiences on the bus [] resulted in challenges with attendance and engagement.” (P-E)
- The Team met on June 12, 2024 to review the District’s evaluations and determine eligibility. (P-D, S-1, S-2)
- Student was found ineligible for special education. The Team agreed that Student met the criteria for an emotional disability, that she was not making effective progress in the general education program, and that the lack of progress was a result of her disability. However, the Team found that Student did not require special education and/or related service to make effective progress or to access the general education curriculum. According to the school-based Team, Student’s emotional needs could be met through the counseling and specialized transportation provided in her 504 Plan. (P-D, S-1, S-2)
- Via email dated June 13, 2024, Parent rejected the Team’s finding of non-eligibility and on June 14, 2024 filed for a due process hearing with the Bureau of Special Education Appeals (BSEA). (P-D)
LEGAL STANDARDS:
- 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.”[4] In Massachusetts, a parent or a school district, “may request mediation and/or a hearing at any time on any matter[5] 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.”[6] Nevertheless, it is well established that matters that come before the BSEA must involve a live or current dispute between the parties.[7] 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.”[8]
- Legal Standard for Summary Judgment.
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.”[9] 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.”[10] 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 [fact-finder] could resolve the point in the favor of the non-moving party.”[11] “As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.”[12]
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.[13]
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.”[14] To survive this motion and proceed to hearing, the adverse party must show that there is “sufficient evidence” in its favor that the fact finder could decide for them.[15] 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.”[16] The non-moving party’s evidence will not suffice if it is comprised merely of “conclusory allegations, improbable inferences, and unsupported speculation.”[17]
Here, Parents argue that there is no disputed issue of material fact that Student meets both prongs of eligibility under 603 CMR 28.05(2)(a)(1) such that she has an emotional disability, and she is unable to access the general curriculum without the provision of related services (counseling and specialized transportation). Hence, to assess Parents’ claim, I first turn to the legal standards regarding determining eligibility.
- Legal Standard for Determining Eligibility
The IDEA defines a “child with a disability” as a student having specifically identified disabilities “who, by reason thereof, needs special education and related services.”[18] “Special education” is defined as “specially designed instruction, at no cost to the parents, to meet the unique needs of a child with a disability, … [inclusive of] … [any] related service, if the service is considered special education rather than a related service under State standards.”[19] Under the IDEA, “specially designed instruction,” is defined as “adapting, as appropriate to the needs of an eligible child under this part, the content, methodology, or delivery of instruction— (i) To address the unique needs of the child that result from the child’s disability; and (ii) To ensure access of the child to the general curriculum.”[20] The term “related services” means transportation and such developmental, corrective, and other supportive services as are required to assist a child with a disability to benefit from special education.[21]
Pursuant to the IDEA, if it is determined, through an appropriate evaluation “that a child has one of the disabilities identified … but only needs a related service and not special education, the child is not a child with a disability.”[22] If, however, “the related service required by the child is considered special education rather than a related service under State standards, the child would be determined to be a child with a disability.”[23] In Massachusetts, special education is defined as “specially designed instruction to meet the unique needs of the eligible student or related services necessary to access the general curriculum and [] include the programs and services set forth in state and federal special education law.”[24]
Moreover, Massachusetts defines a “school age child with a disability” as a child “… who, because of [specifically identified disabilities] … is unable to progress effectively in regular education and requires special education services, including … only a related service … [if they] are required to ensure access of the child with a disability to the general education curriculum.[25] Massachusetts regulations define “eligible student” as “… a person aged three through 21 … who has been determined by a Team to have a disability(ies), and as a consequence is unable to progress effectively in the general education program without specially designed instruction or is unable to access the general curriculum without a related service. In determining eligibility, the school district must thoroughly evaluate and provide a narrative description of the student’s educational and developmental potential.”[26] 603 CMR 28.02(18) defines “progress effectively in the general education program” to mean “to make documented growth in the acquisition of knowledge and skills, including social/emotional development, within the general education program, with or without accommodations, according to chronological age and developmental expectations, the individual educational potential of the child, and the learning standards set forth in the Massachusetts Curriculum Frameworks and the curriculum of the district.”
In determining eligibility for special education, the Team must first identify whether the student has one or more of the disabilities enumerated in the IDEA,[27] and then determine if, by reason of that disability, the child is unable to progress effectively in the general education program without specially designed instruction or is unable to access the general curriculum without a related service.[28] Massachusetts uses the federal definition of “related services.”[29] Of relevance, these include “counseling services … provided by qualified social workers, psychologists, [or] guidance counselors.”[30] “Should a student only need related services but be able to access the general curriculum, without them, the student is not eligible for special education.”[31] When a student does not qualify for an IEP, a school district may still offer the student some accommodations under Section 504.[32]
APPLICATION OF LEGAL STANDARDS:
For Parents to prevail on their Motion, they must demonstrate that no disputed issue of material facts exists such that Student has a disability that satisfies the definition under IDEA or state law, and that “as a consequence[, she] is unable to progress effectively in the general education program without specially designed instruction or is unable to access the general curriculum without a related service.” [33] If Springfield can demonstrate that there is “sufficient evidence” such that Student has no disability pursuant to state and federal law and/or that she is able “to progress effectively in the general education program without specially designed instruction or is []able to access the general curriculum without a related service,” then Parents’ Motion must be denied. Here, after considering the relevant law, the arguments of the parties, and the facts before me, I find that Parents’ Motion must be DENIED.[34]
In the instant case, there are no disputed issues of fact such that 1) Student has a disability pursuant to the IDEA[35], 2) Student was not making effective progress in general education, and 3) Student’s lack of progress was a result of her disability. However, a disputed issue of material fact exists as to whether the services Student requires, per the agreement of the Team (i.e., transportation and counseling), do, in fact, constitute special education per the definition of 603 CMR 28.02(20). Resolution of this disputed material fact would, in turn determine whether such services are related services under Section 504 or whether Student is eligible for an IEP. [36] For IEP eligibility, Student’s emotional disability must both necessitate related service(s) and hinder her effective progress in general education or make her unable to access the general curriculum, such that these services are required for her to effectively progress in the general education program.[37] As such, the fact that Student meets the IDEA criteria for an emotional disability does not automatically render her eligible for an IEP.[38]
Parents assert that because Student is unable to access the general curriculum without transportation and counseling, she must be found eligible for special education as a matter of law. The District argues that
“if the Student’s position were accepted, all students on 504 plans would by definition be eligible for special education which we know, legally, is not the case. The Student argues that because the Team determined that the Student requires related services she must have been found eligible for special education. As indicated on the attached flowchart that was completed at the Team meeting, it was determined that the Student does not require specialized instruction and/or related services in order to access the general education curriculum.”
In response, Parents contend that “[t]he District cannot have it both ways. It cannot claim that [Student] requires related services to access the general curriculum for purposes of Section 504, but then deny that these same services are required for special education eligibility. This inconsistency further demonstrates the District’s misapplication of the eligibility criteria and strengthens the case for summary decision.”
Here, Parents’ argument oversimplifies what is meant by the second prong of the eligibility test.[39] Specifically, Parents ignore the inextricable link between eligibility for special education and individual educational potential, performance, and progress.[40] Although 603 CMR 28.02(9) defines an eligible student as one who “is unable to access the general curriculum without a related service,”[41] the regulation also states that “[i]n determining eligibility, the school district must thoroughly evaluate and provide a narrative description of the student’s educational and developmental potential.” This is because the “paramount goal of the Commonwealth [is] to provide a public education system of sufficient quality to extend to all children the opportunity to reach their full potential,”[42] and the purpose of the Commonwealth’s special education law is “to ensure that eligible Massachusetts students receive special education services designed to develop the student’s individual educational potential.”[43] As such, the Massachusetts special education statute defines the term “special education” to mean “educational programs and assignments including, special classes and programs or services designed to develop the educational potential of children with disabilities.”[44] Therefore, 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.[45] 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. [46]
Here, Parents have not established that Student requires the related services of transportation and counseling in order to access the general education curriculum in a manner that allows her to develop her potential in accordance with the goal of Massachusetts special education regulations. This standard exceeds that of the District just meeting Student’s individual needs as adequately as it meets the needs of her nondisabled peers (which are the goals of Section 504).[47] Thus, there is a genuine issue of material fact remaining as to eligibility, and, as such, summary judgment is denied.
ORDER:
Parents’ Motion is hereby DENIED.
So ordered,
By the Hearing Officer[48],
s/ Alina Kantor Nir
Alina Kantor Nir
Date: July 24, 2024
[1] As Student is a minor, I refer to Parents rather than to Student in this Ruling.
[2] Parents submitted 5 exhibits in support of their Motion.
[3] Springfield Public Schools submitted 2 exhibits in support of its Opposition.
[4] See 34 C.F.R. §300.507(a)(1).
[5] Limited exceptions exist that do not apply here.
[6] 603 CMR 28.08(3)(a).
[7] See In Re : Student v. Bay Path Reg’l Vocational Tech. High Sch., BSEA # 18-05746 (Figueroa, 2018).
[8] In Re: Georgetown Pub. Sch., BSEA #1405352 (Berman, 2014).
[9] 801 CMR 1.01(7)(h).
[10] See id.
[11] French v. Merrill, 15 F.4th 116, 123 (1st Cir. 2021); see Maldanado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 581 (1st Cir. 1994).
[12] Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
[13] See id. at 252.
[14] Id. at 250.
[15] Id. at 249.
[16] Mack v. Great Atl. & Pac. Tea Co., 871 F.2d 179, 181 (1st Cir. 1989).
[17] Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990).
[18] 20 USC 1401(3)(A) and (B).
[19] 20 USC 1401(29); 34 CFR 300.39(a).
[20] 34 CFR 300.39(a)(3).
[21] 34 CFR 300.34 (a). As used in Section 504, related aids and services are part of an appropriate education and must be provided to the extent that they enable the school district to meet the individual educational needs of students with disabilities as adequately as it meets the needs of nondisabled students. See 34 CFR 104.33 (b).
[22] 34 CFR 300.8(a)(2)(ii).
[23] Id.
[24] 603 CMR 28.02(20).
[25] M.G.L. c. 71B §1.
[26] 603 CMR 28.02(9).
[27] Mr. I. ex rel. L.I. v. Maine School Admin. Dist. No. 55 , 480 F.3d 1, 13-14 (1st Cir. 2007).
[28] Id.; seeM.G.L. c. 71B §1; 603 CMR 28.02(17).
[29] 20 USC 1401(26)(A); see 603 CMR 28.02(18).
[30] Id.; 34 CFR 300.34(c)(2).
[31] In re: Student and Mendon-Upton Regional School District, BSEA# 2203125 (Mitchell, 2022) (citing to 20 USC 1401(26)(A), 34 CFR 300.34(a), and 34 CFR 300.39(a)).
[32] See Nieves-Marquez v. Puerto Rico, 353 F.3d 108, 125 (1st Cir. 2003) (“it may be that children can qualify as disabled for purposes of § 504 but not IDEA”); Milton (MA) Pub. Schs., 122 LRP 3399 (OCR 10/27/21) (resolving claims that a district discriminated against a student who was found ineligible under the IDEA by failing to evaluate the student for Section 504 eligibility and instead placing the student on an individual curriculum accommodation plan).
[33] See 603 CMR 28.02(9).
[34] I decline to address the District’s argument that the issue of eligibility is moot due to the District’s offer of an IEP for Student for the purposes of resolution, as, to date, none has been proposed.
[35] Disability includes the following impairments: autism, developmental delay, intellectual impairment, sensory impairment, neurological impairment, emotional impairment, physical impairment, learning impairment and specific learning disability. See 603 C.M.R. 28.02(7); see also 20 U.S.C. 1401(3); 34 C.F.R. 300.7.
[36] 34 CFR 300.34 (a). As used in Section 504, related aids and services are part of an appropriate education and must be provided to the extent that they enable the school district to meet the individual educational needs of students with disabilities as adequately as it meets the needs of nondisabled students. See 34 CFR 104.33 (b).
[37] See 603 CMR 28.02(9); see also Mr. I. v. Me. Sch. Admin. Dist. 55, 416 F. Supp. 2d 147, 155 (2007) (noting that the team determined Student did not qualify for special education services because there was “no adverse impact on her academic progress”); Triton Public Schools #1400006 (Crane, 2013) (“In determining eligibility, the school district must thoroughly evaluate and provide a narrative description of the student’s educational and developmental potential”); Mount Greylock Regional Schools, BSEA # 971702 (Erlichman, 1997) (“In order for a child to be eligible for special education, it must also be shown that because of the disability, the student is unable to progress effectively in regular education, and requires special education services to successfully develop his (her) individual educational potential”).
[38] See Doe v. Cape Elizabeth Sch. Dep’t, 382 F. Supp. 3d 83, 103 (2019) (finding that “a diagnosis of GAD does not automatically mean a student requires special education to succeed in school); see also Mount Greylock Regional Schools (“Although the finding of a disability is always a predicate to receiving special education services, it is not, by itself, sufficient to trigger eligibility”).
[39] See 603 CMR 28.02(9).
[40] See Mount Greylock Regional School District (“it must be emphasized, that in order to support a finding of special education eligibility, it must be shown that a student requires special education services; that is, that he cannot attain his individual educational potential without such services”).
[41] 603 CMR 28.02(9).
[42] M.G.L. c. 69, s. 1.
[43] 603 CMR 28.01(3).
[44] M.G.L. c. 71B, s. 1.
[45] See Mr. I., 480 F.3d at 20 (“[w]hile ‘speech-language pathology services’ comprise a category of ‘related services,’ 20 U.S.C. § 1401(26)(A), directly teaching social skills and pragmatic language to [the student] amounts to adapting the content of the usual instruction to address her unique needs and to ensure that she meet state educational standards, [], those defining educational performance to include ‘communication’ and requiring progress in ‘career preparation’”); see also William V. v. Copperas Cove Indep. Sch. Dist., 774 F. App’x 253, 254 (5th Cir. 2019) (the district court “did not consider whether the accommodations being provided to the plaintiffs’ son constitute ‘special education’ or instead only ‘related services’” and “made no findings as to whether the plaintiffs’ son was making progress under the accommodations he was receiving. Consideration of those questions might lead the district court to reach a different conclusion on the child’s eligibility for an Individualized Education Program, or on the issue of whether the School District’s current accommodations were adequate to meet the child’s educational needs”); Triton Public Schools, BSEA # 1400006 (Crane, 2013) (“This emphasis within these eligibility standards on considering a student’s learning potential is echoed in Massachusetts’ statutory educational standards”). In contrast, access to the general education curriculum under Section 504 means that individuals with disabilities have access to publicly funded programs, services, activities and places equivalent to the access enjoyed by individuals without disabilities. See 34 CFR 104.3.
[46] See Mount Greylock Regional Schools (listing clear indicators of students’ inability to make effective progress, thus necessitating special education services).
[47] See Doe, 382 F. Supp. 3d at 103 (“[T]he need for special education services to address performance deficits was not evident given the . . . the lack of evidence indicating there was a deficit in Jane’s actual educational capabilities”); see also Triton Public Schools (emphasizing the need for thorough evaluations in determining student eligibility).
[48] The Hearing Officer gratefully acknowledges the diligent assistance of legal intern Sara Pompeo in the preparation of this Ruling.