COMMONWEALTH OF MASSACHUSETTS
DIVISION OF ADMINISTRATIVE LAW APPEALS
BUREAU OF SPECIAL EDUCATION APPEALS
In re: Westfield Public Schools and Student
BSEA # 2212235C
RULING ON WESTFIELD PUBLIC SCHOOLS’
MOTION FOR COMPLIANCE WITH DECISION
This matter comes before the Hearing Officer on the June 21, 2023 Westfield Public Schools’ Motion for Compliance with Decision (Motion) in which the Westfield Public Schools (Westfield or the District) moves for an Order directing the Parents to comply with the May 15, 2023 Decision in this matter. On June 22, 2023, Parents responded to the Motion, “voic[ing] [their] strong opposition to any further action that continues to harm [their] son and [their] family.”
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).
This Ruling is issued pursuant to BSEA Hearing Rule XIV, which provides, in relevant part, that a “ party contending that the Hearing Officer’s decision is not being implemented may file a motion requesting the BSEA to order compliance with the decision. … Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief ….”.
For the reasons set forth below, the District’s Motion is DENIED.
RELEVANT FACTS[1] AND PROCEDURAL HISTORY:
1. On May 15, 2023[2], I issued a Decision granting substitute consent for Westfield Public Schools to conduct an extended evaluation of Student, age 15, at a therapeutic milieu. Specifically, the Decision states:
“The evidence as a whole underscores the importance of an extended evaluation for Student. Based on Student’s profile and significant disengagement from school, it is equally important that Student be evaluated in an environment that has the needed therapeutic and behavioral supports for him. The District has met its evidentiary burden.”[3]
I determined that “SSDC, or a similar location, is the least restrictive environment for the extended evaluation,” and, in Footnote 78, I noted, “In light of the approaching conclusion to the 2022-2023 school year and Parents’ concern, as expressed in their opening statement, regarding ‘tak[ing Student] away from his friends and his school,’ the District may want to assess whether an extended evaluation in a therapeutic milieu during the summer session may be possible.”
2. Since the issuance of the Decision, Student has only attended three days of school.
3. Following the issuance of the Decision, Westfield sent referral packets to four therapeutic schools: SSDC, Mill Pond, Hampshire Education Collaborative (HEC), and Curtis Blake[4].
4. Parents visited SSDC, Mill Pond, and Curtis Blake but have not completed the intake process at any of these schools.
5. On June 21, 2023, the District filed the instant Motion, asserting,
“It is the District’s position that failure to fully participate in the intake processes at these schools effectively prevents the District from effectuating the Hearing Officer’s Order. It is very likely that at least one if not more of these schools would accept [Student] for an extended evaluation if the Parents fully complied with-the process. The District fully expects that [Student] will begin the 2023-24 school year at a therapeutic schools for an extended evaluation as Ordered. At this time, the District is seeking an order compelling Parents to comply with the Order or a finding that [Student] is not entitled to return to Westfield High School in the fall pending completion of the extended evaluation in a therapeutic school.”
6. On June 22, 2023, Parents filed their response in opposition of the Motion. They asserted that they “have been trying to encourage [Student] to attend Curtis Blake” and “would be willing to complete the intake process for Curtis Blake.” Student “is refusing to go. [They] have encouraged him to go but forcing him against his will is causing him more harm than good.” Parents also proposed alternatives to the extended evaluation, including but not limited to having Student participate in the Edgenuity/Imagine Learning “Exceptional Students Course Suite” or in homeschooling.
LEGAL STANDARDS AND DISCUSSION
A. Legal Standards:
- Compliance with and Enforcement of a BSEA Decision.
Pursuant to the Individuals with Disabilities in Education Act (IDEA), a decision of the Bureau of Special Education Appeals (BSEA) is final, subject only to judicial review.[5] Thus, a final decision of the BSEA must be implemented immediately,[6] but it may be appealed to a court of competent jurisdiction.[7]
BSEA hearing officers, unlike courts, do not have authority to “enforce” decisions.[8] Yet this general lack of enforcement authority does not preclude the BSEA from determining whether an order has been complied with. According to Massachusetts special education regulations and the BSEA Hearing Rules, a party contending that a BSEA decision is not being implemented may file a motion with the BSEA setting out the areas of non-compliance. The hearing officer may convene a hearing of limited scope.[9] Where a hearing officer finds that a school district failed to comply with a BSEA decision, hearing officers have generally fashioned equitable relief in the form of additional compensatory education and/or monetary reimbursement for privately secured services.[10] The hearing officer may also refer the matter to the Legal Office of the Department of Education[11] or other office for appropriate enforcement action.[12]
Cases involving a parent’s failure to comply with a BSEA decision are limited. In a recent matter, Hearing Officer Sara Berman examined the hearing officer’s authority in compliance matters.[13] She concluded that, although “[a]t first glance,” Rule XIV of the Hearing Rules, which tracks the language of the applicable state regulation, 603 CMR 28.08(6)(b),
“would appear to allow a hearing officer to order not only school districts or state agencies to comply with BSEA decisions, but also to order such compliance from parents (including guardians and Special Education Surrogate Parents) and/or adult students[, s]uch an interpretation of the Rule, however, would be contrary to federal and state statutory and regulatory provisions governing both the authority of the BSEA, and the “stay put” rights of students who are the subject of hearing decisions.”[14]
Hearing Officer Berman further explained that 34 CFR §300.513(a)(1)-(2), which
“outlines the responsibility of the hearing officer, namely, to determine ‘on substantive grounds whether a child has received FAPE’ or, under limited circumstances, whether a child did not receive a FAPE due to ‘procedural inadequacies’, …explicitly allows hearing officers to order school districts to comply with the procedures mandated by the provision, stating that ‘[n]othing in paragraph (a) of this section shall be construed to preclude a hearing officer from ordering an LEA to comply with procedural requirements under §§300.500 through 300.536.’ (emphasis supplied) Nowhere, however, does the regulation authorize hearing officers to issue orders directing parents or guardians to take, or refrain from taking, any action in relation to the decision, or to ‘enforce’ decisions with respect to any party….
… As with the Federal law, nothing in the applicable state regulations [603 CMR 28.08(5)(c) and 603 CMR 28.08(6)(b)] authorize hearing officers to issue orders directing parents or guardians to ‘comply’ with decisions relative to a child’s services or placement.”[15]
Notwithstanding the above, Hearing Officers may make findings and order with respect to parental failure to comply with a BSEA Decision. In In Re: Hamilton-Wenham Public Schools, BSEA # 04-4201, Hearing Officer Rosa Figueroa concluded that where a school district was unable to comply with a BSEA decision because of a parent’s or a student’s actions, the school district was found compliant with such decision ordering the school district to place a seventeen-year old student in a private, residential program, because the district had attempted to make FAPE “available” to the student who refused to attend. Hearing Officer Figueroa reasoned that the IDEA does not require a district to motivate a student to avail himself of the education services and placement offered, especially when the student is not compelled by state law to attend school, and his Parents fail to require him to do so. Therefore, Hearing Officer Figueroa concluded that the district had met its legal obligation.[16]
B. Application of Legal Standards:
Applying the foregoing analysis to the facts in the instant case, I conclude that while the Decision in this matter sets forth what the District must do to offer Student a FAPE (i.e., refer Student to therapeutic programs where an extended evaluation can be completed), it does not and cannot require any action on the part of Parents.[17] Moreover, neither the pertinent statutes and regulations nor Rule XIV authorizes me to order or direct Parents to take any actions with respect to the extended evaluation.
In the present matter, the District is not obligated to ensure, nor am I able to force, Student’s participation in the extended evaluation.[18] Therefore, I find that if Parents choose not to submit Student for the extended evaluation, the District shall be deemed to have satisfied its obligation to comply with the May 15, 2023 Decision.
ORDER
The District’s Motion is hereby DENIED. However, if Parents choose not to submit Student for the extended evaluation, the District shall be deemed to have satisfied its obligation to comply with the May 15, 2023 Decision.
So Ordered,
_____________________________________________
Alina Kantor Nir, Hearing Officer
Date: June 26, 2023
[1] The facts in this section are drawn from the parties’ pleadings and are subject to revision in further proceedings.
[2] The District’s Motion states, in error, that the Decision was issued on April 15, 2023. However, the Decision in this matter was issued on May 15, 2023.
[3] Internal citations have been omitted.
[4] Although Curtis Blake is not a therapeutic school, the District sent a referral to said school at Parents’ request, and Curtis Blake indicated they could add a therapeutic component to Student’s programming based on their collaboration with the Center School.
[5] See 20 U.S.C. s. 1415(i)(1)(B).
[6] According to Black’s Law Dictionary, the adjective “immediate” means occurring without delay, instant.
[7] See 603 CMR 28.08(6).
[8] Joseph v. Boston Public Schools, BSEA # 06-3836 (Crane 2006); see A.R. v. New York City Department of Education, 407 F.3d 65, n.13 (2nd Cir. 2005) (although the terms of a special education Hearing Officer’s decision are enforceable by a court, “[Hearing Officers], as is common in administrative procedures, have no enforcement mechanism of their own”); Longmeadow Public Schools, BSEA # 08-0673 (Crane, 2010) (“As is typical of administrative due process agencies, the BSEA generally lacks enforcement authority”).
[9] The hearing officer may also elect to rule on the motion without a hearing. See BSEA Hearing Rule VI D.
[10] See In Re: Chicopee Public Schools and Nelida, BSEA #04-0093, 10 MSER 276 (Byrne, 2004); In Re: Dracut Public Schools, BSEA # 08-5330c, 15 MSER 178 (Crane, 2009).
[11] The Department of Education is now known as the Department of Elementary and Secondary Education.
[12] 603 CMR 28.08(6)(b); BSEA Hearing Rules, Rule XIII (B) and (C), Rule XIV.
[13] Ashburnham-Westminster R.S.D. & Student (Ruling on District’s Motion to Order Compliance), BSEA No. 2303703 (Berman, 2023).
[14] Id.
[15] Id. (also noting that
“[h]earing officers must and do have authority to issue orders to both parents and school districts regarding the procedural aspects of a hearing; e.g., to meet filing deadlines, conduct themselves with decorum during the hearing, and the like. Such authority is necessary to enable hearing officers to perform their responsibility to conduct fair and impartial hearings, and the consequences for not obeying such orders relate only to the hearing itself such as dismissal of a hearing request or refusal to admit certain evidence into the record. This clearly differs from authority to order parents to comply with substantive decisions about services and/or placement”).
[16] The student had turned seventeen years of age and was no longer subject to the Commonwealth’s compulsory school attendance laws. Accordingly, judicial remedies compelling the student’s attendance at the residential program secured by the school district were no longer an option. In Re: Hamilton-Wenham Public Schools, BSEA # 04-4201 (Figueroa, 2004). Consider also In Re: Hampden-Wilbraham Regional School District and James, BSEA #05-4878, where Hearing Officer Ray Oliver found that non-compliance by parents who interfered with the school district’s ability to conduct a previously ordered comprehensive evaluation “undercut the integrity of the BSEA process,” and he sanctioned Parents by dismissing with prejudice several parental claims. In Re: Hampden-Wilbraham Regional School District and James, BSEA #05-4878 (Oliver, 2006).
[17] See Ashburnham-Westminster R.S.D. & Student (Ruling on District’s Motion to Order Compliance), BSEA No. 2303703 (Berman, 2023).
[18] See In re: Student with a Disability, 00236/09-10AS, 111 LRP 16554 (SEA PA, 2010) (“systemic process and legal determinations do not serve to force a parent to avail themselves of programs deemed appropriate”).