COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
BSEA #08-3479
BSEA #08-4805
ISHMAEL1 & DUXBURY PUBLIC SCHOOLS
RULING ON MOTIONS
This ruling is issued in response to Duxbury’s motion to quash the subpoenas of the Superintendent and the Guidance Counselor; its motion to have testimony of the Principal and School Psychologist by phone2 and Mother’s motion to eliminate the issue of harassment from the School District’s hearing request.3 Mother objects to both of School’s motions. This Hearing Officer4 granted the joint request of the parties to convert the first day of hearing (March 11, 2008) to a motion session to address these issues.5
I. DUXBURY’S MOTION TO QUASH
Duxbury’s motion to quash the subpoena of the Superintendent is granted. Subpoenas may be quashed or vacated if they are unreasonable, oppressive, irrelevant or improper; Hull v Massachusetts Municipal Wholesale Electric Company, 414 Mass 606, 616 (1993). Mother indicates that she would have the superintendent testify on district wide policies. The articulated issues are compliance with the last accepted IEP, the appropriateness of the proposed IEP and fact-finding regarding whether Mother’s due process complaint was filed for any improper purpose, such as to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation. The Superintendent is not a member of Ishmael’s TEAM and Mother has not proffered any potential testimony that the Superintendent could give regarding Duxbury’s compliance with Ishmael’s last accepted IEP, the appropriateness of the current IEP or any harrassment issues. Mother has asserted that the Superintendent would offer testimony regarding Duxbury’s noncompliance policy and procedures; however general policy issues are not relevant to Ishmael’s current educational program and issues regarding potential past procedural violations have been decided in previous decisions and cannot be revisited here; ( see Ishmael v. Duxbury Public Schools, BSEA #07-2419, BSEA #072419C).
Duxbury’s motion to quash the subpeona of the Guidance Counselor is also granted. Mother has not proffered the elicitation of any potential testimony that relates to the issues raised by the Parties. In addition, Ishmael’s school psychologist and his special education teacher will both be testifying in this matter and as such Mother may question these witnesses about any relevant issues that relate to Ishmael’s emotional needs.
II. DUXBURY’S MOTION FOR TELEPHONIC TESTIMONY
Duxbury has requested that the Principal, School psychologist, Holocaust teacher and School nurse testify by phone because it anticipates that their testimony will be brief and that it would be an inconvience for these witnesses to travel to a hearing, and not an efficient use of valuable public time and resources. Duxbury admits that these witnesses may offer some relevant testimony and does not argue that the subpoena of any of these witnesses should be quashed because it is unreasonable, oppressive or improper. The Administrative Procedure Act allows the Presiding Officer, if no Party objects, to designate that all or a portion of a hearing be conducted with one or more participants situated in different locations and communicating through the medium of one or more telecommunication devices; 801 C.M.R. 1.01 (12). Here Mother objects to telephonic testimony because she wishes to view the witnesses while they are testifying. The rule does not appear to allow discretion for telephonic testimony if the parties do not agree. Therefore Duxbury’s motion for telephonic testimony is denied. However, these witnesses will be allowed to testify first and will be excused once their testimony is concluded.
III. MOTHER’S MOTION TO LIMIT THE ISSUES
On February 20, 2008 Duxbury filed a counterclaim requesting a ruling that its proposed IEP offers Ishmael a free appropriate public education (FAPE) in the least restrictive environment (LRE) and that Parent’s due process hearing request was brought for the improper purpose of harassing the school district; ( see 34 C.F.R. 300.517 (a)(1)(iii). Duxbury maintains that the amendments to the IDEA regulations now allow a School District to request attorney’s fees from a Parent for frivolous claims6 or when a claim is brought for harassment purposes. Those regulations, found at 34 C.F.R. 300.517 (a) (1) (ii), (iii) read:
In general.
(i) In any action or proceeding brought under section 615 of the Act, the court, in its discretion, may award reasonable attorneys’ fees as part of the costs to–
(ii) To a prevailing party who is an SEA or LEA against the attorney of a parent who files a complaint or subsequent cause of action that is frivolous, unreasonable, or without foundation, or against the attorney of a parent who continued to litigate after the litigation clearly became frivolous, unreasonable, or without foundation; or
(iii) To a prevailing SEA or LEA against the attorney of a parent, or against the parent, if the parent’s request for a due process hearing or subsequent cause of action was presented for any improper purpose, such as to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation.
As grounds for the addition of this hearing request Duxbury maintains the following:
1. Mother7 has not cooperated with Duxbury in assessing Ishmael’s needs by her refusal to allow Duxbury to obtain information regarding Ishmael’s partial hospitalization in October 2006 and by refusing to allow Duxbury to assess Ishmael, despite a statement from Mother that indicated that Ishmael had thought about killing himself, that Mother believed he was capable of this act and that he would do it in school; ( see Duxbury’s Hearing request, Duxbury Public Schools & Ishmael , (BSEA 07-2419, 13 MSER 223, Finding 5 (Byrne, 2007).
2. Hearing Officer Byrne had ruled in favor of Duxbury permitting Duxbury to proceed with the psychiatric evaluation and indicating that should Parent or Student not cooperate with the proposed evaluation, Duxbury could not reasonably be held responsible for any alleged failure to student; ( see Duxbury’s February 20, 2008 hearing request, see also, Duxbury Public Schools & Ishmael , (BSEA 07-2419, 13 MSER 223, 227 (Byrne, 2007).
3. Despite attempts to have the psychiatric evaluation conducted, Mother would not allow Ishmael to be evaluated unless Duxbury agreed to twenty-four8 stipulations before proceeding with the evaluation.
4. That Mother filed a request for a compliance hearing on July 24, 2007 because the School District had not complied with conducting the psychiatric evaluation ordered by the Hearing Officer;
5. That a compliance hearing was held before Hearing Officer Byrne and that Hearing Officer Byrne found that Duxbury had substantially complied with the BSEA decision that ordered Ishmael to receive a psychiatric evaluation without agreeing to any preconditions imposed by the Parent, and that any delay in securing the comprehensive, independent evaluation of the Student ordered in the June 13, 2007 decision in BSEA#07-2419 was attributable to the custodial parent. ( See School District’s hearing request, Duxbury Public School & Ishmael, (BSEA 07-2419C, 13 MSER 337-339 (Byrne, 2007).
6. Therefore, Mother’s current request for a compliance hearing, where;
· Duxbury has been found in compliance,
· Mother lists no instances where procedural violations have denied Ishmael a FAPE,
· During the last two years Mother has filed two complaints with the Office of Civil Rights (one completed investigation has found the School District not to have engaged in retaliatory action), two complaints with the BSEA (that found that Duxbury’s actions were in compliance and were appropriate), and five complaints with PQA (where only de minimums violations not impacting a FAPE were found) and
· Mother has threatened a class action suit constitute harassment of the School District.
Duxbury also maintains that it must exhaust administrative remedies before proceeding to Court for an award of attorney’s fees ( see School District hearing request, Oral argument).
Mother maintains that she has brought her claim for compliance solely because the District has not complied.
After consideration of the issues and the arguments of both parties, Mother’s motion to remove the harassment claim from Duxbury’s complaint is allowed. It is noted that the amendments to the IDEA regulations allow a local education agency (LEA) or state educational agency (SEA) to bring forward a claim allowing that a parent’s request for a due process hearing or subsequent cause of action was presented for an improper purpose, such as to harass, to cause unnecessary delay, or to needlessly increase the cost of litigation; 34 C.F.R. 300.517 (a) (1) (iii). It is further noted that the 1st Circuit has held that parents who institute claims for money damages related to violations of the IDEA must first exhaust the administrative process established by the IDEA. However, in that matter, the plaintiff’s claim for money damages was due to an alleged violation of a FAPE to a student. Case law suggests that the exhaustion requirement is exacted if determination of the matter in a due process special education hearing can provide some meaningful relief or provide a record on which the court could make its determination, or that exhaustion would be beneficial for fact finding because a special education hearing officer (or ALJ) has special expertise to decide the issue; ( See . Frazier, supra , Bowden v. Dever, et al, Civil Action No 00-12308-DPW (March 20, 2002)).
However here, Duxbury has not made a claim that Parent’s alleged harassment has denied Ishmael a FAPE. In this matter Duxbury must prove that Mother brought a special education claim with the intention of harassing the District. In Massachusetts, a parent or a school district may request mediation and/or a hearing at any time on any matter 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. A parent of a student with a disability may also request a hearing on any issue involving the denial of the free appropriate public education guaranteed by Section 504 of the Rehabilitation Act of 1973, as set forth in 34 CFR §§104.31-104.39; 603 C.M.R. 28.08 (3) (a). There is nothing in the Massachusetts 766 regulations or the IDEA9 that gives the hearing officer jurisdiction to determine harassment claims that do not concern a child’s right to receive a free appropriate public education in the least restrictive environment. In addition, while a special education hearing officer has expertise regarding issues concerning a free appropriate public education to a child, a special education hearing officer possesses no expertise with regard to an improper intent in filing a matter.
The School District can pursue other remedies without exhaustion of this claim at a due process hearing. If10 the School District prevails at hearing regarding the compliance issue and maintains that the special education claim was brought for an improper purpose, it may go to a court of appropriate jurisdiction to argue its request for attorney’s fees. If the District prevails at hearing regarding the appropriateness of its IEP and maintains that Mother’s actions in not allowing the psychiatric evaluation or other implementation of the IEP have denied Ishmael a FAPE or are seriously endangering Ishmael’s health or safety it may proceed to the superior court with jurisdiction over the residence of the child to make a showing that the child should be placed in an appropriate educational program. The Court, if such a showing is made, has the authority to place the child in an appropriate educational program that allows for the psychiatric evaluation; ( see Ch. 71B. s. 3, see also Duxbury Public School & Ishmael, (BSEA 07-2419C, 13 MSER 337-339 (Byrne, 2007).
ISSUES FOR HEARING
The issues for hearing are:
1. Did Duxbury comply with the last accepted IEP that runs from May 2006-September 2007?
2. If not, are there any facts that excuse the School District from performance or any facts that may bear on a remedy if noncompliance is found? See 603 CMR 28.08 (6) (b).
3. Is Ishmael entitled to compensatory education because the alleged noncompliance has denied the Student a FAPE?
4. Does Duxbury’s proposed IEP, developed in January 2008, provide Ishmael with a free appropriate public education in the least restrictive environment?
By agreement of the Parties a hearing will be held on April 9, 2008 and April 10, 2008 at the Bureau of Special Education Appeals, 11 Dartmouth Street, 1 st Floor, Malden, MA at 10:00 a.m. Final document and witness lists must be filed with the BSEA (with copies to Mother, Duxbury and Father)11 no later than April 2, 2008. Father is a witness in Duxbury’s case and also as Ishmael’s parent has the right through the Family Court to receive all documents pertaining to his son. As such both Mother and Duxbury will send Father all the pleadings that it has filed no later than Friday, March 21, 2008.12 If Father would like to present his own evidence13 he will inform the Hearing Officer, Mother and Duxbury of his intentions to do so in writing no later than March 27, 2008 and present his document and witness list by April 2, 2008.
Any requests for postponement will be made in writing. If the matter is resolved, all the Parties must file a withdrawal in writing.
By the Hearing Officer,
_______________________________
Joan Beron
Dated: March 25, 2008
1
On June 13, 2007 Hearing Officer Byrne issued a decision in this matter (BSEA 07-2419) and later, a decision in a related compliance matter on September 25, 2007 (BSEA 07-2419C). The pseudonym selected by Hearing Officer Byrne will be maintained for continuity.
2
Duxbury does not object to Mother’s subpoenaing of these witnesses but requests that the testimony be telephonic.
3
Mother filed a hearing request on or about December 17, 2007. The issues for that hearing are: (1) whether Duxbury has complied with the last accepted IEP dated May 2006 through September 2007 and i f not, whether there are any facts that excuse the School District from performance or any facts that may bear on a remedy if noncompliance is found? See 603 CMR 28.08 (6) (b). If not, is the Student entitled to compensatory education because this noncompliance has denied the Student a FAPE? On February 20, 2008 the School District filed a hearing request asking that the Hearing Officer find that its proposed IEP, developed in January 2008, provided Ishmael with a free appropriate public education (FAPE) in the least restrictive environment (LRE) and find that Parent’s due process hearing request was brought for the improper purpose of harassing the school district ( see Duxbury’s hearing request February 20, 2008). Hearing Officer Putney-Yacheshyn granted the School District’s motion to consolidate these claims on February 26, 2008.
4
These matters were reassigned to this Hearing Officer on March 4, 2008.
5
At that time other evidentiary issues were addressed such as re-numbering exhibits because some of Mother’s exhibits had identical exhibit numbers or were duplicative. The joint request of the Parties to postpone the matter to April 9, 2008 and April 10, 2008 was also granted. These issues are not in dispute.
6
Duxbury is not bringing an action for frivolous claims pursuant to 34 C.F.R. 300.517 (a) (1) (ii). That paragraph of the statute appears to limit the award of attorney fees to a district to parents’ counsel. Duxbury is bringing its action pursuant to 34 C.F>R. 300.517 (a)(1)(iii).
7
Ishmael’s Mother has sole legal and physical custody of the Student. Ishmael’s father has regular visitation and is an active participant in the Student’s life. There is a history of intense conflict concerning custody and decision-making for the Student (Parents); Duxbury Public Schools & Ishmael (supra , Finding 2).
8
The twenty-four stipulations were for: (1) the School District consulting evaluator (Consulting evaluator) not to submit an opinion regarding Ishmael’s present diagnosis and treatment plan, (2) that the consulting evaluator not assess, interview or evaluate Ishmael without Mother’s written permission for every interaction; (3) that the School District pay for any consulting between the Consulting evaluator and Ishmael’s providers and that it provide Mother with a written estimate for services and the estimate is paid and deposited by the consultant and if conditions are not met the deposit would be postponed, the deposit forfeited and a new deposit paid before a consultation is rescheduled; (4) that the Consulting evaluator and Ishmael’s treatment providers be paid in full pursuant to the conditions laid out in stipulation #3.; (5) that a copy of all estimates and bills submitted to the School District be sent to Mother by the doctors and the consulting evaluator (6) that the school attorney, school superintendent and the special education director’s communications with their Consulting evaluator be conducted only in writing with copies sent to Mother; (7) that the School District’s evaluation be submitted only to Mother and the Superintendent and that details not be shared with additional staff members without Mother’s written permission (Mother had objected to the TEAM previously reviewing a report to one of Ishmael’s evaluators provided by Father); (8) that the meeting with Mother, Student and the Consulting evaluator be scheduled with two weeks notice during specified dates in August 2007 that would occur before a meeting held at a clinical location with Student’s current providers in August 2007; (9) that the School District only review discharge summaries while in the presence of Mother and not copied; (10) that a meeting occur at a specific clinical location in August 2007 to develop an educational and safety plan, including any of the doctor’s proposed changes to the IEP; that the Clinic be paid in advance and that the consulting evaluator not copy any information in any form out of the record; (11) that the Consulting evaluator meet with Ishmael’s father in his office in Boston and not by phone; that the Consulting evaluator inform Mother of the time and date of the meeting before any consultation and provide written confirmation once the meeting has been concluded; (12) that the School District evaluator provide a written summary of each discussion he has with each relevant school personnel and provided to Mother five business days before the meeting at the clinical location.; (13) that the Consulting evaluator not copy any of Ishmael’s student records, initial and date all of the school records he reviewed and provide copies of those records reviewed to Mother; (14) that the assessment be completed by August 31, 2007 and written report sent by September 4, 2007, (15) that pursuant to the last agreed upon IEP a parent teacher meeting would occur on September 10, 2007 from 2:00 to 3:00 p.m. or September 17, 2007 from 2:00-3:00 p.m. so that Parent and more of Ishmael’s TEAM members could be included; (16) that the TEAM convene to consider the consulting evaluators report and Ishmael’s doctor’s reports with at least two weeks advance notice, and that TEAM only consider the educational and safety plan proposed by the Consulting evaluator; that the TEAM consist of the Special Education Administrator, the High School Principal, the Special education liaison, the Special Education Chairperson, the classroom teachers and anyone else determined by the School District or by Mother to be part of the TEAM and at the beginning of the meeting, taped by Mother, the Consulting evaluator provide the staff education and training on Teenage Depression, Bipolar Disorder, Attention Deficit Disorder and Suicide prevention that would be videotaped,: (17) that if Mother indicates that the IEP would be accepted, presented with a copy of the IEP to staff and Mother on a Tuesday, Thursday or Friday at a tape recorded meeting that would include all of Ishmael’s teachers, the school psychologist and all other staff members that the school administration and Mother decided would have a responsibility in assuring that the IEP is fully implemented and the Consulting evaluator if the presentation was not videotaped; (18) that another staff meeting would occur during the third week of school during the following year following the same conditions mandated the previous year; (19) that this Consulting evaluator be retained by the School District to provide consultation, training and updates to the report as requested by the School District or Mother at any time; (20) that the School District agree to comply with the corrective measure ordered by DOE on February 21, 2007 and assign a monitor to document and send Mother weekly implementation of the student’s IEP; (21) that all IEPs include the specifics of a timely procedure for reporting and investigating safety plan violations and a statement from the consulting evaluator regarding compliance with the safety plan and a three day investigation and response when safety plan violations are reported; (22); that all IEPs include the specifics of a timely procedure for reporting and investigating noncompliance with the IEP and a five day investigation and response when compliance violations are reported; (23) that staff education and safety training regarding teenage depression, mental health issues, and suicide risk and prevention be conducted for all staff members in the Duxbury school district and that (24) the Superintendent and the Consulting evaluator, by July 23, 2007 provide written confirmation that they have read and agreed to these conditions and upon this written confirmation Mother would schedule an appointment with the Consulting evaluator to conduct the psychiatric evaluation in August 2007.but if the School District did not respond or agree by July 23, 2007 Mother would file a motion with the BSEA regarding noncompliance with the Hearing Officer’s order ( see School Hearing request Exhibit 8).
9
The relevant section of the IDEA states that any party may present a complaint with respect to any matter relating to the identification, evaluation, or educational placement of a child or the provision of a free appropriate public education to such child. 20 U.S.C. s. 615 (b)(6)(A).
10
The Hearing Officer has made no determination regarding the issues at this juncture. Both Mother’s and the School District’s claims must be decided after consideration of the documentary evidence and testimony at hearing.
11
Father does not have custody but is involved in Ishmael’s life and has the right to receive educational documents. Mother and Duxbury did not provide Father with any of their exhibits or witness lists. Both agreed to do so by April 21, 2008.
12
The deadline for sending these documents was given orally to the Parties at the prehearing on March 11, 2008. Failure of either party to send these documents may result in a party’s claims being dismissed.
13
This is a motion to intervene.