COMMONWEALTH OF MASSACHUSETTS
DIVISION OF ADMINISTRATIVE LAW APPEALS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Student v. Wachusett Regional School District
BSEA # 24-05325
RULING CLARIFYING ISSUES FOR HEARING
This matter comes before the Hearing Officer following the parties’ disagreement as to issue(s) for Hearing, as communicated via emails dated January 27 and 28, 2025. Specifically, on January 27, 2025, the Hearing Officer inquired whether the hearing would proceed on the sole issue of whether the IEP dated 11/29/2023–11/28/2024 was reasonably calculated to offer Student a Free Appropriate Public Education (FAPE) in the Least Restrictive Environment (LRE). Parents responded in the negative and clarified that the “scope of the hearing also include[d] challenging whether the [Wachusett Regional School District (Wachusett or the District)] ha[d] been providing FAPE consistently over time, both under the current IEP and previous IEPs.”
Also on January 27, 2025, the District, through its Counsel, asserted “that the initial hearing request ha[d] never been amended so the District only ha[d] notice of the issues raised in the initial hearing request. [The District did] not assent to an amendment of the hearing request at this point so close to the hearing date [, February 11, 2025].”
On January 28, 2025, Parents clarified “the scope of the hearing based on [their] initial request.” They asserted that the “case [was] not limited to the [] IEP (11/29/2023–11/28/2024). It challenge[d] whether the Wachusett Regional School District ha[d] consistently provided a Free Appropriate Public Education (FAPE) to [Student]. The issues raised in [the] original hearing request focus[ed] on foundational concerns about the district’s failure to implement essential teaching methods and supports over time, as well as the inadequacy of the current IEP.” Parents indicated that the “original hearing request [did not] require[] amending, as it [did] not specify IEP dates. Additionally, given [Parents’] request to receive all previous IEPs, it seem[ed] reasonable to expect that the district would understand [Parents’] intention to address issues over multiple years, not just the current IEP.”
On January 28, 2025, Parents also
“address[ed] a potential exception to the statute of limitations based on the withholding of required information by the school district. Specifically, [Parents’] claim include[d] concerns that the school failed to implement appropriate instructional techniques for writing, such as requiring [Student] to trace letters—a foundational method for developing writing skills. Instead, the school provided blank paper, which was an ineffective approach given [Student’s] needs.
This failure in instructional methods was not disclosed to [Parents], nor was it communicated that these methods were not in place, despite the obligation to provide adequate updates on her progress and adherence to the IEP. As a result, [Parents were] unable to recognize or act on the issue in a timely manner.
Under IDEA (20 U.S.C. § 1415(f)(3)(D)), the withholding of such required information qualifies as an exception to the statute of limitations, and [Parents] believe this applies to the circumstances described. [Parents were] asserting claims based on this failure to provide proper writing instruction, which [] had a significant impact on [Student’s] progress.”
The District responded, objecting
“to the amendment of the Parents’ Request for Hearing at this late date to cover additional IEP periods. The Request for Hearing was filed on December 5, 2023. It [was] reasonable for the District to assume the issues raised in the Request for Hearing related to the then recently proposed IEP dated November 29, 2023 – November 28, 2024. This [was] the IEP the District [] prepared for defending at hearing. The Parents now wish[ed] to expand the issues at hearing to other periods of time and to request an expansion of the statute of limitations. The District object[ed] to this.”
Neither party requested a hearing with respect to the instant Ruling. 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 Hearing in this matter will proceed on the following issues: 1) Whether the IEPs developed and offered by the District for the 2021-2022, 2022-2023, and 2023-2024 school years were reasonably calculated to offer Student a FAPE in the LRE, and 2) If the answer is ‘no’, what is the appropriate remedy?
- FACTUAL BACKGROUND AND RELEVANT PROCEDURAL HISTORY:
Student is a seventh-grade student residing within the Wachusett Regional School District. She is eligible for special education services under the primary disability category of Autism.
On December 5, 2023, Parents filed a Hearing Request in this matter alleging that the District had failed to “incorporate” “repeated suggestions from parents regarding the implementation of simple writing and teaching methods commonly used in kindergarten and first-grade classrooms” into Student’s IEP. In addition, according to Parents, Wachusett “falsely claimed that [Student’s] skills [had] plateaued, contradicting the clear evidence of notable regression in her progress. This misleading representation raise[d] significant concerns about the district’s commitment to providing accurate assessments of her educational needs.” Parents disputed the “adequacy” of Student’s “provided support” “particularly in relation to speech and Occupational Therapy[sic]” services. Parents asserted that Wachusett “ha[d] been unresponsive to requests for necessary changes.” For relief, Parents “advocat[ed] [for] the necessity of transferring [Student] to a specialized school that can better address and support her unique requirements.”
On December 15, 2023, Wachusett responded to the Hearing Request, asserting, in part, that “the IEPs, services, and placements within the Wachusett Regional
School District developed by Student’s IEP Team and offered by the District for the 2021- 2022, 2022-2023, and 2023-2024 school years were, and remain[ed], appropriate and reasonably calculated, based on information available to the IEP Team at the time of development, to provide Student with a free appropriate public education in the least restrictive environment.” In addition, according to the District, “an out-of-district placement, as sought by the Parents, would be overly and unnecessarily restrictive, would isolate the Student from peers without disabilities and her local community, and [did] not meet federal and state requirements that the Student be provided with services in the least restrictive environment capable of conferring educational benefit.” Moreover, any claims set forth in the Parents’ Request for Hearing arising from services, evaluations, and placements provided, or not provided, to the Student prior to December 5, 2021 were untimely and barred by the applicable statute of limitations.
Since the filing of the complaint, the District has proposed a new IEP for Student. Parents have not amended the Hearing Request since their initial filing.
The Hearing is scheduled to begin on February 11, 2025.
- LEGAL STANDARDS AND APPLICATION OF LEGAL STANDARDS:
- Legal Standards:
- Statute of Limitations:
The Individuals with Disabilities Education Act’s (IDEA) statute of limitations states as follows:
“(C) Timeline for requesting hearing
A parent or agency shall request an impartial due process hearing within 2 years of the date the parent or agency knew or should have known about the alleged action that forms the basis of the complaint, or, if the State has an explicit time limitation for requesting such a hearing under this subchapter, in such time as the State law allows.
(D) Exceptions to the timeline
The timeline described in subparagraph (C) shall not apply to a parent if the parent was prevented from requesting the hearing due to–
(i) specific misrepresentations by the local educational agency that it had resolved the problem forming the basis of the complaint; or
(ii) the local educational agency’s withholding of information from the parent that was required under this subchapter to be provided to the parent.”[1]
With regard to the first exception, the Third Circuit has found that
“[i]n the absence of a showing of ‘misrepresentation’ akin to intent, deceit, or egregious misstatement, any plaintiff whose teachers first recommended behavioral programs or instructional steps short of formal special education might invoke the exception. Mere optimism in reports of a student’s progress would toll the statute of limitations. The allegations comprising a claim that a FAPE was denied or that Child Find obligations were not met would nearly always suffice to extend the timeframe beyond that dictated by the statute of limitations. This cannot be the intent of the regulation. Rather, we conclude that a rule demanding at least a school’s knowledge that its representations of a student’s progress or disability are untrue or inconsistent with the school’s own assessments best comports with the language and intent of the provisions. Therefore, we hold that in order to be excused from the statute of limitations based on § 1415(f)(3)(D)(i) because the school ‘specific[ally] misrepresent [ed] … that it had resolved the problem,’ plaintiffs must show that the school intentionally misled them or knowingly deceived them regarding their child’s progress.”[2]
With regard to the IDEA’s second exception to the two-year statute of limitations (stating that the statute of limitations does not apply if a district withheld “information from [Parents] that was required under this subchapter to be provided to [them]”[3]), the “required” information includes a notice of procedural safeguards that the school district must provide to parents at least once each year pursuant to 20 USC § 1415(d), as well as upon initial referral or parental request for evaluation, upon receipt of the first state complaint in the school year, upon receipt of the first due process complaint in the school year, in accordance with disciplinary procedures, and upon parental request.[4] The procedural safeguards notice must include a full explanation of IDEA procedural safeguards, including, but not limited to, the opportunity to present and resolve complaints through the due process complaint and state complaint procedures.[5]
Therefore, in order to meet the IDEA’s above-quoted part D(ii) exception to the statute of limitations, Parents must satisfy two requirements: first, that the District withheld information required to be provided under 20 USC § 1411 through § 1419, part B of the federal special education statute; and second, that “parent was prevented from requesting the [due process] hearing due to” the District’s withholding the required information. Both prongs must be satisfied for the statute of limitations exception to apply.[6]
- Amending the Hearing Request
The IDEA requires the party initiating a due process hearing to file a complaint and provide notice of this complaint to the other party and the state educational agency. In part, the complaint must include a description of issue(s), including facts relating to such issue(s) and a proposed resolution to the dispute, to the extent known and available to the party at the time.[7] This provides the opposing party with notice as to the issues for hearing.
BSEA hearing Rule I(G) allows the moving party to amend the hearing request under two circumstances:
“1. In response to a hearing Officer’s determination that a hearing request is insufficient, as described in E, above, the moving party may file an amended hearing request within fourteen (14) calendar days of the date of the hearing Officer’s determination.
2. If the other party consents in writing, or the hearing Officer grants permission. (The hearing Officer may not grant such permission later than five (5) calendar days before the start of the hearing.)”
BSEA hearing Rule I(G) further states that whenever a hearing request is amended, new timelines for the entire process are thereafter calculated, as if the amended hearing request were a new request. The Rule also indicates that to the extent the amendment merely clarifies issues raised in the initial hearing request, the date of the initial hearing request shall be controlling for statute of limitations purposes. For issues not included in the original hearing request, however, the date of the amended hearing request shall be controlling for statute of limitations purposes.[8]
- Application of Legal Standards:
According to the First Circuit Court of Appeals, complaints filed by pro se parties should be construed liberally. [9] “The policy behind affording pro se plaintiffs liberal interpretation is that if they present sufficient facts [to state a claim], the court may intuit the correct cause of action, even if it was imperfectly pled.”[10] This principle aligns with “[o]ur judicial system[, which] zealously guards the attempts of pro se litigants on their own behalf” while not ignoring the need for compliance with procedural and substantive law.[11] As such, I keep this principle in mind in interpreting Parents’ Hearing Request. Parents’ Hearing Request does not specify the IEP at issue at the time of the filing. Although it is reasonable to assume that the IEP dated 11/29/2023–11/28/2024 was at issue, Parents’ references to Wachusett’s “repeated” failures as well as Student’s “regression” support Parents’ assertion that more than this IEP is at issue. The District’s Response to the Hearing Request, stating that “over the course of the last three (3) years, the Student’s parents have not accepted any proposed changes to her IEPs, thereby limiting the Student’s services to the services provided for in the Student’s last accepted IEP and placement, an IEP dated November 24, 2020 to November 23, 2021,” further suggests that the District has had notice of Parents’ issues with prior IEPs as well. Therefore, over the District’s objection asking that this Hearing be limited to the 11/23-11/24 IEP, I find it appropriate to interpret Parents’ Hearing Request as challenging the IEPs proposed “over the course of the last three (3) years.”
I turn next to the statute of limitations issue. Parents’ December 5, 2023 Hearing Request fails to specify the IEP(s) being challenged. Instead, it points to “repeated” failures by Wachusett to incorporate Parents’ recommendations and a general lack of adequacy in speech and occupational therapy services. No specific dates were provided in the complaint. Moreover, in their clarifying email dated January 28, 2025, Parents challenged the District’s “failure to implement essential teaching methods and supports over time.”[12] As such, I refer to the IDEA’s two-year statute of limitations in establishing parameters for Parents’ complaint, especially as Parents failed to assert any exceptions to the IDEA’s statute of limitations in their initial Hearing Request. Moreover, since the filing of the Hearing Request, Parents have not amended their complaint to respond to the District’s assertion in its December 15, 2023 Response to the Hearing Request that claims occurring prior to December 5, 2021 must be dismissed in accordance with the statute of limitations.
In light of these facts, I find unpersuasive Parents’ assertion on January 28, 2025 that Wachusett’s “failure in instructional methods was not disclosed to [Parents], nor was it communicated that these methods were not in place, despite the obligation to provide adequate updates on her progress and adherence to the IEP “prevented Parents from being able “to recognize or act on the issue in a timely manner” thereby implicating 20 U.S.C. § 1415(f)(3)(D). Specifically, although this matter was filed in December 2023, Parents did not allege an exception to the statute of limitations until two weeks prior to the start of the Hearing. In addition, Parents’ reliance on the exceptions in 20 U.S.C. § 1415(f)(3)(D) is unfounded. Specifically, subsection (i) does not apply in the instant matter as Parents did not and do not allege “specific misrepresentations by the local educational agency that it had resolved the problem forming the basis of the complaint.” Nor does subsection (ii) apply as the Statute’s reference to the “withholding of information from the parent that was required under this subchapter to be provided to the parent” refers to such information as the notice of procedural safeguards (which Parents, in the instant matter, do not allege was not provided), not to the use of specific educational strategies or methodologies as Parents here assert. Such “withholding” by Wachusett, even if true, does not qualify as an exception to the statute of limitations.
As such, the Hearing on February 11, 2023 may address the appropriateness of any IEPs developed by Wachusett between December 5, 2021 and December 5, 2023. It will not address the appropriateness of any IEP developed thereafter, as Parents have not amended their initial Hearing Request.
- ORDER:
The Hearing in this matter will proceed on the following issues: 1) Whether the IEPs developed and offered by the District for the 2021-2022[13], 2022-2023, and 2023-2024 school years were reasonably calculated to offer Student a FAPE in the LRE, and 2) If the answer is ‘no’, what is the appropriate remedy?
So Ordered,
By the Hearing Officer:
/s/ Alina Kantor Nir
Alina Kantor Nir
Date: January 29, 2025
[1] 20 USC § 1415(f)(3).
[2] D.K. v. Abington Sch. Dist., 696 F.3d 233, 245–46 (3d Cir. 2012) (internal citations omitted).
[3] 20 USC § 1415(f)(3).
[4] See 34 CFR 300.504(a); see also Administrative Advisory SPED 2001-4: Finding of No Eligibility for Special Education which may be found at https://www.doe.mass.edu/sped/advisories/01_4.html.
[5] See 34 CFR 300.504(c); see also Administrative Advisory SPED 2001-4: Finding of No Eligibility for Special Education which may be found at https://www.doe.mass.edu/sped/advisories/01_4.html (“Forms N 1 and N 2 must be mailed with a Parents’ Rights Brochure to meet federal requirements. The Parents’ Rights Brochure contains contact information for both the BSEA and the PRS”).
[6] See El Paso Indep. Sch. Dist. v. Richard R., 567 F. Supp. 2d 918, 945 (W.D. Tex. 2008).
[7] See 34 CFR 300.508(b).
[8] BSEA hearing Rule I(G).
[9] See Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997).
[10] Id.
[11] Id.
[12] Emphasis added.
[13] This school year would be limited to December 5, 2021 -2022.