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In Re: Student & Winchester Public School – BSEA Nos.  24-11047 & 24-11708

COMMONWEALTH OF MASSACHUSETTS

DIVISION OF ADMINISTRATIVE LAW APPEALS

BUREAU OF SPECIAL EDUCATION APPEALS 

In Re: Student & Winchester Public School
BSEA Nos.  24-11047 & 24-11708

RULING ON PARENTS’ MOTION TO POSTPONE AND PARENTS’ MOTION TO CONSOLIDATE

This matter comes before the Hearing Officer on Parents’ Motion to Postpone[1] filed with the Bureau of Special Education Appeals (BSEA) on April 24, 2024 seeking  a postponement of the initial hearing date, April 30, 2024, for “extraordinary circumstances” and Parents’ Motion to Consolidate (together with Motion to Postpone, the Motions) filed later in the day on the same date, seeking to consolidate BSEA # 2411047,  a case filed on behalf of Winchester Public Schools (Winchester or the District)against Student on April 9, 2024, and which is scheduled for hearing to begin on April 30, 2024, with a case filed by Parents on April 24, 2024 against the District, BSEA # 2411708. 

Specifically, in Parents’ Motion to Postpone, Parents assert that “[a]dditional time is necessary to prepare for hearing due to the complexity of the factual and legal issues in this matter and the importance of the outcome of any ruling after hearing where a residential school placement is at stake for a student with complex needs,” and they intend to engage in discovery. In addition, “[d]ue to the complexity of the issues before the BSEA, the hearing cannot be completed in one day.” Parents proposed alternate Hearing dates at the end of May.[2]

In Parents’ Motion to Consolidate, Parents assert, in part, that “the factual and legal issues in the claims and counterclaims (and in the two separately docketed matters) have substantial overlap, and they cannot be decided separately [as the counterclaims are in substantial part the same as a defense to the claims]; that Parents “cannot be precluded from asserting their counterclaims if Winchester’s claims are heard first and separately”; that “[w]itness testimony and evidentiary materials for the claims and counterclaims have substantial overlap, if not being completely duplicative if heard twice”; and, that “[h]earing the matters separately is not in the interests of justice or judicial economy.” Also on April 24, Parents filed Supplement To Request For Postponement, asserting, in part, that Parents

“previously filed a Request for Postponement in this matter (#24-11047 ). Subsequently, the BSEA docketed their Counterclaims filed in #24-11047 as a new matter (#24-11708). [Parents] believe the Counterclaims were properly filed in #24-1104 7 but have filed a Motion to Consolidate both matters since they were docketed separately.

The automatic hearing date in #24-11708 is May 29, 2024. … [Parents] request that the hearing on both matters be consolidated and scheduled for May 29 and 30, 2024.”

Neither party has requested a hearing on the Motions.  Because neither testimony nor oral argument would advance the Hearing Officer’s understanding of the issues involved, this Ruling is issued without a hearing, pursuant to Bureau of Special Education Appeals Hearing Rule VII(D).

For the reasons articulated below, Parents’ Motions are DENIED.

RELEVANT FACTS[3] AND PROCEDURAL HISTORY:

  1. Student is a 19 year-old student who resides within the Winchester Public Schools District. He was found eligible for special education services under the primary disability category of Emotional Disability and secondary disability categories of Neurological and Health. Since the 7th grade, Student has been attending Glenhaven at public expense.
  2. On or about December 20, 2022, Winchester proposed an Individualized Education Program (“IEP”) and Placement Consent Form for Glenhaven for November 28, 2022 through June 23, 2023. As Student had delegated decision-making to Mother, she consented to the placement at Glenhaven, but partially rejected the IEP. In part, Mother rejected the anticipated graduation date and proposed IEP end date of June 23, 2023, stating that Student would require continuing residential placement after June. She was also concerned that Student was not receiving the transition services he needed.[4]
  3. According to the District, as of June of 2023, Student had met all local and state graduation requirements, including the Competency Determination based on the Massachusetts Comprehensive Assessment System (MCAS), and earned his high school diploma in June 2023.
  4. Parents disagree that Student met local graduation requirements. Specifically, they “do not believe he was taught consistent with the Massachusetts Curriculum Frameworks (as required by law and his IEP), that his work completion and participation was worthy of full credit for courses, or that he actually met all graduation standards as required by Winchester and Massachusetts.” Parents further dispute that Student’s placement at Glenhaven offered him a free appropriate public education (FAPE).
  5. In June 2023, the District agreed to fund an extension of the Student’s residential placement at Glenhaven for up to 5 months for the 2023-2024 school year, in order to provide an opportunity for the Department of Mental Health (DMH) to identify an adult program/group home for the Student.
  6. On January 23, 2023, the IEP Team[5] met.  Parents were provided a draft IEP dated 1/23/2024 to 1/22/2025 prior to the meeting. At the meeting, the Team determined that Student has been appropriately graduated, but the District determined that the Student would be permitted to remain in the placement until March 31, 2024 to allow for time transition. Parents rejected that Student was appropriately graduated from high school and stated that Student still required special education under federal and state law. In addition, they assert that although Student is a client of DMH and the Department of Developmental Services (“DDS”), a DMH group home setting is not appropriate for him, as he requires a unified and coordinated residential school setting to receive a free appropriate public education.
  7. On April 9, 2024, the District filed a due process complaint with the BSEA seeking an order that the Student is no longer eligible for special education.  
  8. On April 11, 2024, Counsel for Parents entered his Notice of Appearance and “request[ed] an extension of time for filing [the] Response to Winchester’s Hearing Request to April 23, 2024.” Counsel indicated that he was “on vacation and out of the office from April 12-22, 2024 and therefore unable to respond prior to April 23. The Response is due on or about Friday, April 19, 2024 and the extension would be short and for good cause.”
  9. On April 12, 2023, Counsel for the District indicated that he has “no objection [to the extension request] so long as it does no[t] affect any of the other timelines.”  Th extension was granted..
  10. On April 23, 2024, at 4:30 PM, the parties participated in a Conference Call with the undersigned Hearing Officer. During the call, Parents’ Counsel indicated that he would be filing an Answer and Counterclaim later in the day and that he would be seeking a short postponement of the District’s matter so that both matters could proceed together. Winchester’s Counsel objected to a postponement of its matter, asserting that Winchester was ready to proceed on the initial hearing date and the District would be prejudiced by a delay due to the financial burden of maintaining Student’s residential placement. The parties discussed potential hearing dates in the event that a postponement and/or consolidation was ordered.
  11. On April 24, 2024[6], Parents filed Parents’ Response To Winchester Public Schools’ Request For Hearing & Counterclaims[7]  “invoke[ing] [Student’s] right to stay put pursuant to his last agreed upon IEP and placement at Glenhaven Academy during the pendency of this matter” and requesting, in part, that the Hearing Officer “[c]onclude that [Student] continues to be a student with disabilities that requires special education under federal and state laws”; “[d]etermine that [Student] requires an Individualized Education Program (IEP) and placement at an appropriate residential school to receive a free appropriate public education (FAPE)”; and, “[o]rder the Winchester Public Schools to develop an IEP and place [Student] at a residential school consistent with his disability-related needs.”
  12. To date, the District has continued to fund Student’s placement at Glenhaven.

LEGAL STANDARDS:

  1. Postponements

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.  BSEA Hearing Rule III governs requests for postponement. Pursuant to this rule, a party may request postponement of a hearing at least 6 business days before the scheduled hearing date, and the Hearing Officer may grant this request for good cause.[8] The decision whether to postpone a hearing is within the discretion of the Hearing Officer, who must give serious consideration to opposition to a request.

Caselaw further demonstrates that whether to continue any judicial proceeding is a matter entrusted to the sound discretion of the judge, and his decision will be upheld absent an abuse of that discretion.[9] However, such discretion is not unfettered.[10]  In considering a request for a continuance, a judge should consider whether the failure to grant a continuance “would be likely to make a continuation of the proceeding impossible, or result in a miscarriage of justice.”[11] 

  1. Consolidation

Although the Hearing Rules do not specifically address motions to consolidate, pursuant to 801 CMR 1.01(7)(j), where multiple proceedings involve “common issues,” the Hearing Officer may consolidate them “with the concurrence of all parties and any other tribunal that may be involved.” Furthermore, group hearings may occur “if it appears from the request for a hearing or other written information submitted by the Parties that the matters involve questions of fact which are identical.”[12] 

In addition, although not bound by the rules of civil procedure, Hearing Officers are often guided by these rules. Pursuant to Rule 42 of both the Massachusetts and the Federal Rules of Civil Procedure,“If actions before the court involve a common question of law or fact, the court may: (1) join for hearing or trial any or all matters at issue in the actions; (2) consolidate the actions; or (3) issue any other orders to avoid unnecessary cost or delay.”[13] The Hearing Officer must decide whether the “balance of considerations favors consolidation.”[14]

CONCLUSION:

Here, I am disinclined to grant a postponement of the Hearing. First, although Parents seek a Pre-Hearing Conference, BSEA Hearing Rule IV (A) states that “[a]bsent extraordinary circumstances, a prehearing conference shall not delay the hearing date unless a party requests or assents to a postponement for the purpose of scheduling a prehearing conference.” Here, I find no extraordinary circumstances that necessitate a Pre-Hearing Conference, as the issues in dispute are clear and do not require further clarification.[15]  

 Parents’ failure, to date, to engage in discovery is not good cause for a continuance, especially as Parents have had notice of the District’s filing since April 9, 2024. In addition, although on April 11, 2024 Counsel sought an extension to file a response, he made no motion for a continuance of the matter. Subsequently, Parents’ request to postpone was made orally on April 23, 2023 and in writing on April 24, 2024, neither “at least 6 business days before the scheduled hearing date.”[16]

Although Parents argue that the instant matter is complex in nature, the issue for hearing is discrete and clear; specifically, the District’s due process complaint seeks an order that Student is no longer eligible for special education.  In addition, the matter neither spans numerous years nor multiple IEPs.[17]

Moreover, a continuance until the latter part of May would result in undue prejudice to the District as it would obligate Winchester to continue funding Student’s residential placement for a minimum of 6 weeks[18], depending on the agreed upon Hearing dates, while the parties prepare for and proceed to Hearing, and while the Hearing Officer writes and issues the Decision. Therefore, Parents’ Motion to Postpone BSEA # 2411047 is DENIED.

With regard to Parents’ Motion to Consolidate, I note at the outset that it is BSEA practice to issue a separate Notice of Hearing when a responding party files counterclaims.  I concede that judicial efficiency may argue in favor of   consolidation (since, as Parents assert, “the factual and legal issues in the claims and counterclaims (and in the two separately docketed matters) have substantial overlap”).  I nevertheless deny consolidation in the instant matter as consolidation and the attendant postponement of the District-filed hearing  until May 29, 2024 would result in undue prejudice to the District.   Parents’ Motion to Consolidate is DENIED.

However, in consideration of Parents’ assertion “…that the counterclaims are properly filed in #24-11047” and “should not have been docketed separately,” Parents may withdraw BSEA # 2411708 and present their case-in-chief at the conclusion of the District’s case-in-chief in BSEA #24-11047 on April 30, 2024.

ORDER:

Parents’ Motions are hereby DENIED.  BSEA #24-11047 will proceed to hearing on April 30, 2024, beginning at 9:00AM and concluding at 5:00PM.[19]

Exhibits and Witness lists were due by the close of business day on April 23, 2024.[20] As neither party has submitted these, unless the parties are able to agree on a date by which to submit Exhibits and Witness Lists, said submissions will be due by the close of business day on Friday, April 26, 2024. The parties may submit these electronically and follow up with hard copies at a later date.  

So ordered,

By the Hearing Officer,

s/ Alina Kantor Nir


Alina Kantor Nir

Date: April 25, 2024

[1] Together with the Motion to Postpone, Parents filed an Affidavit In Support Of Request For Postponement.

[2] Parents’ Motion to Postpone indicates that “[d]uring yesterday’s conference call, the parties and Hearing Officer discussed potential available dates if a postponement were allowed, pending confirmation with respective clients. Those dates were May 17 and 23, 2023. Other dates were discussed as options. Counsel for the parent-guardians stated he had a previously scheduled court hearing on May 20. Counsel for Winchester stated this morning that Winchester was not available on May 17 but was available on May 20 and 23.” In addition, “[Mother] is travelling May 13-19, 2024 with her sister who has Stage 4 lung cancer…. [T]he parent-guardians request that another date be considered for the second date of hearing. They are available on May 22, 24, 29, or 30, 2024.”

[3] The statement of facts is prepared principally in order to rule on the Motion. 

[4] According to Parents, “The parties engaged in mediation during the spring of 2023. However, the Agreement Reached through Mediation specifically stated the parties did not waive any of their rights under state and federal special education and Section 504 law.”

[5] According to Parents, “Winchester did not conduct an annual review for the November 2022 IEP until January 23, 2024, and only after parent-guardian request.”

[6] Parents filed their Response and Counterclaims via email on April 23, 2024 at 8:51PM.  As such, the matter is deemed to have been filed on the following business day, April 24, and thus outside the timeframe allowed by the extension. Nevertheless, my Ruling would be unchanged had Parents submitted same on April 23, 2023.

[7] Parents’ Counterclaims are scheduled for Hearing on the initial hearing date of May 29, 2024.  The BSEA issued a Notice of Hearing (BSEA # 2411708) reflecting sameon April 24, 2024.

[8] See BSEA Hearing Rule III (A); see also 34 CFR 300.515.

[9] See, e.g., Commonwealth v. Fall River Motor Sales, Inc., 409 Mass. 302, 307, 565 N.E.2d 1205 (1991); Caira v. Zurich Am. Ins. Co., 91 Mass. App. Ct. 374, 384, 76 N.E.3d 1002, 1011 (2017); In re: Quinn, 54 Mass. App. Ct. 117, 120, 763 N.E.2d 573, 577–78 (2002).

[10] See, e.g., Commonwealth v. Super, 431 Mass. 492, 496, 727 N.E.2d 1175 (2000); Commonwealth v. Clegg, 61 Mass.App.Ct. 197, 200, 808 N.E.2d 818 (2004); Com. v. Burston, 77 Mass. App. Ct. 411, 417, 931 N.E.2d 1019, 1024 (2010).

[11] Com. v. Borders, 73 Mass. App. Ct. 911, 912, 900 N.E.2d 117, 119 (2009) (internal quotations and citations omitted).

[12] 801 CMR 1.02(9)(a).

[13] Fed. R. Civ. P. 42(a); Mass. R. Civ. P. 42(a), as amended, 423 Mass. 1402 (1996). 

[14] In Re: Mashpee Public Schools, BSEA #080998, #081317, #081316, 14 MSER 143 (Crane 2008) (“the balance of considerations favored consolidation for the purposes of the evidentiary hearing with respect to the three students”). 

[15] See BSEA Hearing Rule III (B) (“The prehearing conference shall clarify or simplify the issues as well as review the possibility of settlement of the case”).

[16] See BSEA Hearing Rule III (A); see also 34 CFR 300.515..

[17] I note that during the April 23 conference call, the parties discussed the need for 2 hearing days, such discussion was for the purpose of a hearing if the two matters were consolidated.

[18] Pursuant to the Notice of Hearing (BSEA # 2411708)issued on April 24, 2024, the initial hearing date is May 29, 2024.  

[19] The Hearing Officer would be open to extending the Hearing to begin earlier and continue later on April 30. The parties would need to be judicious in their choice of witnesses. The Hearing Officer is also available on May 3, 2024 for a second day of Hearing should the parties mutually agree to add said date.

[20] Via email on April 23, 2024, the District indicated that it “did not submit exhibits, based on the Hearing Officers’ representations of her intent to grant the postponement request [during the April 23 conference call].” I note for the record that the Exhibits and Witness Lists were due on April 23, 2024 by the close of business day.  During the  conference call, I did not communicate that I was inclined to grant a postponement. It is my practice to ask the parties for alternate hearing dates in the event that a postponement is granted so as to eliminate the need for a subsequent conference call. As such the District’s reliance on the conference call in not submitting the Exhibits and Witness List was misplaced. I further note that the alleged representation on which the District purportedly relies would have occurred mere minutes before the exhibits and witness lists were due, as the conference call took place on April 23, 2024 at 4:30 PM and exhibits were due by 5:00 PM on same date.

Updated on April 25, 2024

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