COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Leonard1 and Boston Public Schools
BSEA # 07-4997
RULINGS ON BOSTON’S MOTION TO STRIKE AND PARENTS’ MOTION FOR PARTIAL SUMMARY DECISION
I. INTRODUCTION
This Ruling is issued pursuant to the Individuals with Disabilities Education Act (20 USC 1400 et seq .), Section 504 of the Rehabilitation Act of 1973 (29 USC 794), the state special education law (MGL c. 71B), the state Administrative Procedure Act (MGL c. 30A), and the regulations promulgated under these statutes.
On June 1, 2007, Parents filed a Motion for Partial Summary Decision , seeking interim placement at Melmark New England (Melmark) or, in the alternative, summer placement at Melmark as compensatory education. On June 11, 2007, Boston Public Schools (Boston) filed its opposition. In addition, on June 11, 2007, Boston filed a Motion to Strike, seeking to remove from the record portions of Parents’ Memorandum in Support of Motion for Partial Summary Decision and portions of their attached exhibits. A hearing was held on both motions on June 11, 2007.
For purposes of this Ruling, I consider the motions and opposition referenced above, exhibits 1 through 18 filed by Parents, and the affidavit of Mary Ann Malloy filed by Boston, except that specific parts of Parents’ memorandum and exhibits are disregarded, as explained below in part IIIA.
In order to apprise the parties in a timely manner of my conclusions regarding Parents’ Motion for Partial Summary Decision and Boston’s Motion to Strike , a Summary Ruling on both motions was issued on June 15, 2007. This Ruling replaces that Summary Ruling.
The Executive Office of Administration and Finance Adjudicatory Rules of Practice and Procedure, which are applicable to BSEA hearings, allow for summary decision 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.2
Further guidance is found by turning to judicial rules regarding a motion for summary judgment, which rules set forth a standard substantially similar to the above-referenced adjudicatory rules. The Federal Rules of Civil Procedure, Rule 56(c), provide that summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to a material fact and that the moving party is entitled to a judgment as a matter of law.” When, as here, Parent as the moving party has asserted that no genuine issue of material fact exists, the burden is on Boston (as the nonmoving party) to point to specific facts demonstrating that there is a trial-worthy issue.3
II. FACTUAL BACKGROUND
As required in a summary decision ruling, all evidence and inferences in this matter will be viewed in a light most favorable to Boston as the nonmoving party.4
Student is a four-year-old boy who resides with his Parents in Boston. Student was diagnosed with an autism spectrum disorder at two years of age. At the time of the motion hearing, Student attended a Boston early-childhood, substantially-separate program for children who have a disability on the autism spectrum. Exhibits 4, 5.
Student’s third birthday was November 16, 2005. Prior to turning three, Student had been receiving early intervention services. Exhibit 10.
On September 21, 2005, Parent signed an evaluation consent form for Boston to conduct initial evaluations of Student. On November 30, 2005, Boston held an initial Team meeting and found Student to be eligible for special education services. Exhibits 4, 5, 7.
On December 12, 2005, Parent accepted the IEP in full. Also on December 12, 2005, Parent signed a consent form entitled “Team Determination of Educational Placement” which stated that Student would be placed in a substantially separate classroom. The part of the form indicating the specific program location and date was filled in only as “to be determined.” Exhibits 4, 5, 8.
On February 16, 2006 (which was the Thursday prior to school vacation week), Parent consented to a new “Team Determination of Educational Placement” form, which listed the Kenny School as Student’s specific program location. On or about February 27, 2006, Student began attending the Kenny School. The Kenny School placement had not been discussed in a Team meeting, and Parents were not otherwise included in the decision to place Student at the Kenny School. Exhibits 4, 5, 9.
Student’s IEP for the period December 2005 to November 2006 included the provision of services during the summer of 2006. Boston designated the Orchard Gardens K-8 School in Roxbury as the site for Student’s summer program. In May 2006, Boston mailed to Parents an application packet for this program, which packet included a permission slip, addendum, and emergency information form. Additionally, a current medical clearance is required for participation in the program. Affidavit of May Ann Molloy (Molloy).
When a completed application with the requisite parent signature was not returned to Boston, Boston mailed Parents another packet in June 2006. Affidavit of Molloy.
Boston never received the necessary documents for Student to participate in the summer program. As a result, Boston did not provide transportation for Student to attend his summer program, and Student did not participate in any program during the summer of 2006. Affidavit of Molloy; exhibit 4.
III. DISCUSSION
Student is an individual with a disability, falling within the purview of the Individuals with Disabilities Education Act (IDEA)5 and the state special education statute.6
The IDEA was enacted “to ensure that all children with disabilities have available to them a free appropriate public education [FAPE] that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living.”7 Pursuant to the IDEA, a school district must provide an eligible student with a free appropriate public education (FAPE), which the Supreme Court has described as “personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.”8
Neither Student’s eligibility status nor his entitlement to FAPE, beginning on his third birthday, is in dispute.
A. Motion to Strike
In its Motion to Strike , Boston seeks to remove from the record several entire documents and parts of others, arguing that they contain information not appropriate for consideration by the Hearing Officer.
For reasons explained below, I do not find any of the objected-to documents to be, in their entirety, inappropriate for consideration. However, I agree with Boston that parts of some documents should not be considered for purposes of this Ruling.
The documents to which Boston has objected, and my findings regarding each document, are explained below.
I agree with Boston that an incident that occurred on May 25, 2007 is not relevant to the instant Ruling, and therefore it will not be considered. References to this incident in Section IVA of Parents’ Memorandum in Support of Motion for Partial Summary Decision , paragraph # 22 of the Statement of Facts in this Memorandum, and paragraph # 9 of Father’s affidavit (exhibit 4) will be disregarded for purposes of this Ruling.
Boston moves to strike portions of a Boston Medical Center letter (exhibit 10) and a Boston Medical Center report (exhibit 12) as statements in these documents are hearsay and contain legal conclusions and characterizations of Boston’s conduct, programs, and actions. Hearsay may be considered in BSEA proceedings, and it may be appropriate to consider undisputed facts relevant to Boston’s conduct, programs, and actions. However, I agree that the legal conclusions in these exhibits are not relevant, and they will be disregarded. Boston also objects to information in these documents relative to Student’s summer program in 2006, taking the position that some of this information is disputed by Boston and therefore should not be considered. That facts may be in dispute does not lead me to strike them or ignore them. Rather, it is appropriate for me to consider this information, as well as Boston’s contention that there are factual disputes, and then determine whether there are material facts in dispute.
Boston seeks to strike the affidavits of Mary Ellen Efferen (exhibit 16) and Rita Gardner (exhibit 17) as they contain opinions, characterizations, and recommendations, many of which concern Boston’s programs. I will not consider these affidavits with respect to their opinions, characterizations, and recommendations relevant to Boston’s programs. However, these affidavits are relevant and will be considered with respect to what relief, if any, is appropriate for Student. More specifically, I will consider these affidavits with respect to the appropriateness of the Melmark summer program.
Boston moves to strike exhibit 1, which is Boston’s response in another dispute. This exhibit is relevant to the question of whether Boston has a practice or policy that violated Parents’ procedural rights. However, I need not rely on this document since Boston has not disputed the relevant facts alleged by Parents regarding this issue.
For these reasons, I allow in part, and deny in part, Boston’s Motion to Strike , as specified above.
B. Motion for Partial Summary Decision
Procedural Violation .
IDEA 2004 established the following requirements regarding a Hearing Officer’s findings of procedural violation:
Procedural issues. In matters alleging a procedural violation, a hearing officer may find that a child did not receive a free appropriate public education only if the procedural inadequacies– (I) impeded the child’s right to a free appropriate public education;
(II) significantly impeded the parents’ opportunity to participate in the decisionmaking process regarding the provision of a free appropriate public education to the parents’ child; or (III) caused a deprivation of educational benefits.”9
Under this standard, impeding a parent’s opportunity to participate (pursuant to subsection II, above) and a deprivation of educational benefits (pursuant to subsection III, above) are considered separate procedural violations. I understand this to mean that impeding a parent’s opportunity to participate may be considered a FAPE violation even if it is not shown to have actually caused a deprivation of educational benefits.
Prior to the 2004 amendments to the IDEA specifically referencing procedural violations that may result in a denial of FAPE, courts emphasized the importance of parental participation in the formulation of a student’s special education services and placement.10 Several courts further indicated that interfering with required parental participation is an actionable claim that, in and of itself, may be considered a denial of FAPE.11
I have previously concluded in another dispute, and need not repeat the analysis here, that under the IDEA, a school district must allow parents to participate in any decision regarding which school their son or daughter is to attend, and that under Massachusetts special education regulations, a student’s IEP Team must determine the student’s school placement.12 It is not disputed that, in the current dispute, Boston violated both principles by precluding Parents and the IEP Team from participating in Boston’s decision to place Student at the Kenny School, which placement began in February 2006. I find that, in so doing, Boston violated the IDEA and state special education regulations, resulting in a denial of FAPE.
Yet, it is not apparent at this juncture of the proceeding what remedy is appropriate. A finding that a parent’s opportunity to participate in the special education and placement formulation process was “ seriously hampered” may result in a finding that the IEP was deficient.13 However, Parent accepted, in full, the placement at the Kenny School when it was first offered by Boston in February 2006, and the First Circuit has noted that p rocedural errors regarding an IEP cannot be used to provide substantive relief to parents regarding a subsequent IEP.14 I also find that Parents’ requested compensatory relief is adequately supported by Boston’s failure to provide services for three months, as discussed separately below.
For these reasons, I decline at this time to order any specific relief for Boston’s procedural violation.
Denial of Educational Services .
It is not disputed, and I so find, that through no fault of Parents, Boston denied Student educational services for a period of approximately three months – that is, from November 30, 2005 (when Student was determined to be eligible to receive special education and related services from Boston) until the commencement of special education services from Boston on or about February 27, 2006. During this time period, Student received from Boston none of the special education and related services to which Student was entitled under state and federal special education law. In denying Student these services, Boston violated the FAPE standards of the IDEA and Massachusetts law.15
Boston’s failure to provide educational services occurred within the following factual context, which is undisputed.
When Student was two years old, the Boston Medical Center diagnosed him as having an autism spectrum disorder and determined that he “needs to be in an intensive program for autism.” Exhibit 2. Prior to turning three years old (which was the end of Student’s entitlement to early intervention services and the beginning of Student’s special education entitlement), Student had been receiving early intervention services which were described as follows: “[Student] was receiving daily services through Building Blocks and Beacon. . . . He responded well to therapy with improved behavior, increased language use and eye contact, though he continues to have very significant impairments.” Exhibit 10.
On September 21, 2005, which was nearly two months prior to Student’s third birthday, Parent signed a consent form for Boston to conduct initial evaluations of Student. On November 30, 2005, which was two weeks after Student’s third birthday, Boston found Student eligible for special education services at an IEP Team meeting. Because it is unclear whether Boston’s determination of eligibility occurred within the requisite 45 school working days from receipt of Parents’ consent to evaluate, I decline to consider the two-week gap between Student’s third birthday and Boston’s determination of eligibility.16
Nearly two months after Boston’s determination of eligibility, in a letter dated January 26, 2006, three physicians (Stephanie Blenner, MD, Marilyn Augustyn, MD, and Elizabeth Caronna, MD) who had been following Student at the Developmental Assessment Clinic at Boston Medical Center wrote to Ms. Thompson at Boston’s special education department. The physicians’ letter first noted that they (i.e., these physicians) had worked “intensively” to ensure that Boston evaluated Student and held an IEP Team meeting prior to his third birthday when early intervention services would end. In their letter, the physicians also reminded Boston that they had contacted Boston’s autism program director “to explain the needs of [Student] and his family for ongoing, uninterrupted services.”
The physicians’ letter then explained what they viewed to be the consequences of Boston’s continuing failure to provide educational services to Student:
[Student] has had some deterioration in his behavior coinciding with the end of Early Intervention services in November. His mother is overwhelmed and feels very frustrated that he is not receiving the help and intervention that he so desperately needs . . . . [I]t is tragic to see [Student’s] progress interrupted due to the prolonged and continuing time he has been without needed and critically-timed intervention. . . . Please contact us at [telephone number] as soon as possible so that we can begin to address the critical needs of this young man. [Exhibit 10.]
It took Boston another month (and approximately three months from Boston’s determination of eligibility) to begin providing educational services to Student on or about February 27, 2006. The services were provided in a substantially separate program for autistic children at Boston’s Kenny School. Exhibits 4, 5.
Father’s affidavit explained that during the months that Student was at home without educational services from Boston, Student’s “aggressive and explosive behaviors that had been improving with Early Intervention services, worsened again.” Mother’s affidavit includes a similar statement. Exhibits 4 (par. # 5), 5 (par. # 6).
Boston has provided no explanation for its failure to provide any educational services from November 30, 2005 to February 27, 2006, nor has Boston sought to minimize or contradict the Parents’ affidavits or the physicians’ letter relative to the harm suffered as a result of Boston’s failure to provide services.
In light of (1) Student’s need for intensive special education services, (2) Boston’s determination on November 30, 2005 that Student was eligible for and needed special education services, (3) the likelihood of harm to Student (and possibly others) as a result of any significant interruption of needed services, and (4) Boston’s failure to provide any justification or other explanation for its failure to provide needed services, I find that Boston’s failure to provide Student with any special education and related services for approximately three months (November 30, 2005 to February 27, 2006) was egregious.
Compensatory Services .
As a result of Boston’s failure to provide special education and related services for approximately three months, Student is entitled to compensatory educational services.
Compensatory services are essentially a remedy designed to make a student whole – that is, to make up for what was lost as a result of not having received the requisite special education services.17 As one federal court has instructed, the decision-maker needs to make “an informed and reasonable exercise of discretion regarding what services [Student] needs to elevate him to the position he would have occupied absent the school district’s failures.”18 This may include future services to make up for what was lost.19
Compensatory education is an equitable remedy involving discretion in determining what relief is appropriate after consideration of all aspects of the case.20 Specific aspects of this case that are particularly relevant to any compensatory award include the length of time during which Student was denied all special education services and the finding, above, that Boston’s violation was egregious, as well as the facts in support of that finding.
After careful consideration of all aspects of this dispute, I find that, at this juncture in Student’s education, what is necessary and appropriate to compensate Student are intensive special education services during the summer of 2007 when Student will not be attending his academic-year program. The summer is a time when a student would typically receive either no services or only those services necessary to avoid regression or other loss of educational benefits accrued during the school year ,21 and the First Circuit has noted that summer services may be an appropriate compensatory award in a special education dispute.22
For this purpose, Parents have identified Melmark as their proposed day placement for the summer months (more specifically, from the end of the 2006-2007 academic year to the beginning of the 2007-2008 academic year). During the summer, Melmark provides an intensive, individualized, full-day, full-week program of services for children with a disability on the autism spectrum, with the purpose not simply to prevent regression but to allow children to gain skills as rapidly as possible. Parents have provided factual support, through experts’ affidavits, for the appropriateness of Melmark’s services for Student during the summer of 2007. Exhibits 16, 17.
Boston has objected to consideration of the appropriateness of Melmark within the context of a ruling on a partial summary decision, arguing that this issue should be reserved for an evidentiary hearing on the merits. I disagree. Parents are entitled to seek compensatory relief through a motion for partial summary decision. And, in order for me to consider any services for Student as compensation either in the present context or in an evidentiary hearing on the merits, I must determine the appropriateness of those services.
Boston has not provided any factual support for the proposition (or even argued) that a Melmark day placement for Student during the summer of 2007 would be inappropriate. Once Parents established facts, through affidavits, in support of the appropriateness of the Melmark program as compensation, the burden shifted to Boston to point to specific facts demonstrating that there is a trial-worthy issue – for example, by placing in factual dispute the appropriateness of Melmark’s services in order to obtain an evidentiary hearing regarding that part of the case.23 Since Boston has not met (or even attempted to meet) this burden, the appropriateness of the Melmark placement for the summer of 2007 is undisputed for purposes of this Ruling.
In addition, the parties advised the Hearing Officer (during the motion hearing) that no summer services are included within Student’s current IEP. At the hearing, Parents took the position (with which Boston did not disagree when asked by the Hearing Officer) that Student has stay-put rights to summer services from the last-accepted IEP, which included services for the summer of 2006. As of the date of the motion hearing, Boston had not proposed to Parents any particular services or placement for Student for the summer of 2007. I therefore find that by the date of the motion hearing, the Melmark placement was the only appropriate summer services proposed by either party.
For these reasons, having determined that compensatory services are due and that an intensive summer program would be appropriate relief, I find that a Melmark placement during the summer of 2007 may be ordered as appropriate compensatory education.
Additional Issues .
Parents have argued that they are entitled to compensatory services because Student was not provided special education services during the summer of 2006. Boston has taken the position that there are material facts in dispute regarding this contention. I agree with Boston.
It is not disputed that pursuant to an accepted IEP, Student was entitled to receive services during the summer of 2006. Boston has provided an affidavit explaining that it twice (May and June 2006) sent Parents the summer services packet, which included the requisite parent consent forms for the summer services. Parent acknowledged that she received information from Boston for her to sign concerning summer services for her son. Parent’s affidavit does not explain whether she understood this information, which was provided only in English, or whether she believed that she signed and returned the requisite forms. Boston’s affidavit is clear that Boston believes that it did not received the requisite forms for Student to participate in summer services. Exhibit 4, Malloy affidavit.
Considering all evidence and inferences in a light most favorable to Boston (as the nonmoving party in a motion for partial summary decision), I find that (1) Boston did not receive the forms signed by Parents, which were necessary for Boston to provide Student with services during the summer of 2006, (2) as a result, Boston was justified in not providing transportation or services for Student during the summer of 2006, and (3) therefore, Parents are not entitled to compensatory services or other relief with respect to Student’s lack of services during the summer of 2006.
Parents have also argued that an interim placement at Melmark should be ordered as relief for Boston’s alleged procedural and substantive violations. Parents have made this request outside of the context of the parties’ dispute regarding Boston’s most recently proposed IEP. Parents are seeking this interim placement without any particular time limitation.
I am not persuaded, at this juncture of the proceedings, to find that such relief is warranted. If ordered, the interim Melmark placement sought by Parents may well continue for a significant and indefinite period of time, particularly if Parents successfully asserted their stay-put rights to the interim placement. Such relief goes beyond what would be considered appropriate compensatory services in the circumstances of the instant dispute. The relief sought by Parents is more properly considered as part of any dispute regarding Boston’s most recent IEP, and could then be considered after the development of an evidentiary record relative to the appropriateness of the services and placement contained within the IEP and the appropriateness of the services and placement proposed by Parents.
For these reasons, I deny without prejudice Parents’ request for an interim placement at Melmark.
IV. ORDER
Boston’s Motion to Strike is ALLOWED in part, and DENIED in part.
Parents’ Motion for Partial Summary Decision is ALLOWED with respect to Parents’ request for compensatory services at Melmark New England for the summer of 2007. Boston shall place Student at Melmark New England’s day program, with such placement commencing on or before June 25, 2007 and continuing until immediately prior to the beginning of Boston’s 2007-2008 school year in September 2007. Boston shall provide transportation for this placement.24
Parents’ Motion for Partial Summary Decision is DENIED without prejudice with respect to Parents’ request for interim placement at Melmark New England.25
By the Hearing Officer,
_________________
William Crane
Date: July 6, 2007
1
“Leonard” is a pseudonym chosen by the Hearing Officer to protect the privacy of the Student in publicly available documents.
2
801 CMR 1.01(7)(h). These rules govern BSEA proceedings pursuant to 603 CMR 28.08(5)(b).
3
Nat’l Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735 (1 st Cir. 1995).
4
See Anderson v. Liberty Lobby, Inc., 477 US 242, 255 (1986); Parker v. Universidad de Puerto Rico, 225 F.3d 1, 3 (1st Cir. 2000).
5
20 USC 1400 et seq .
6
MGL c. 71B.
7
20 USC 1400(d)(1)(A). See also 20 USC 1412(a)(1)(A); MGL c. 71B, ss. 2, 3.
8
Bd. of Educ. of the Hendrick Hudson Central Sch. Dist. v. Rowley, 458 U.S. 176, 203 (1982).
9
20 USCS § 1415(f)(3)(E)(2)(ii).
10
E.g.., Board of Education of Hendrick Hudson Central School District v. Rowley , 458 U.S. 176, 206 (1982) ( “congressional emphasis upon full participation of concerned parties throughout the development of the IEP . . . demonstrates the legislative conviction that adequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP”); Amanda J. v. Clark Cty. Sch. Dist , 267 F.3d 877, 892 (9 th Cir. 2001) (“procedural violations that interfere with parental participation in the IEP formulation process undermine the very essence of the IDEA”).
11
M.L. v. Federal Way Sch. Dist ., 394 F.3d 634, 645 (9th Cir. 2005) ( “procedural inadequacies that . . . seriously infringe on the parents’ opportunity to participate in the IEP formulation process, clearly result in the denial of a FAPE.”); Kings Local School Dist., Bd. of Educ. v. Zelazny, 325 F.3d 724, 732 (6th Cir.2003) (a serious infringement on a parent’s opportunity to participate in the formulation of his or her child’s IEP is actionable because it causes “substantive harm … and thus constitute[s] a denial of the child’s right to a FAPE”); Roland M. v. Concord Sch. Comm., 910 F.2d 983, 994-95 (1st Cir. 1990) (“When parents raise procedural claims, their injuries are likewise based on harm to their child; they cannot recover unless there is some rational basis to believe that procedural inadequacies compromised the pupil’s right to an appropriate education, seriously hampered the parents’ opportunity to participate in the formulation process , or caused a deprivation of educational benefits [emphasis added; internal quotations omitted].”).
12
In Re: George and Boston Public Schools , BSEA # 04-2506 , 10 MSER 311 (MA SEA 2004) (ruling).
13
See Amann v. Stow School System , 982 F.2d 644, 652 (1 st Cir. 1992); Hampton School District v. Dobrowlski , 976 F.2d 48, 54 (1 st Cir. 1992); T.B. v. Warwick School Dept. , 2003 WL 22069432 ( D.R.I.,2003) , aff’d 361 F.3d 80 (1 st 2004).
14
Hampton School District v. Dobrowlski , 976 F.2d 48, 54 (1 st Cir. 1992).
15
20 USC 1400 et seq .; MGL c. 71B, ss. 1, 2, 3.
16
Massachusetts special education regulations provide that within 45 school working days after receipt of Parents’ consent to evaluation, Boston must provide an evaluation, convene an IEP Team meeting to review the evaluation, determine the need for special education, and develop an IEP. 28 CMR 28.05(1). Neither party has provided factual evidence relevant to the date that the consent form was received by Boston. Therefore, it is not possible to determine whether the 45-day requirement was met. Therefore, I will not consider as a violation Boston’s failure to provide special education services from Student’s 3 rd birthday (on November 16, 2005) until Boston’s determination of eligibility (on November 30, 2005).
17
See, e.g., G. ex rel. RG v. Fort Bragg Dependent Sch., 343 F.3d 295, 309 (4th Cir. 2003) (“Compensatory education involves discretionary, prospective, injunctive relief crafted by a court to remedy what might be termed an educational deficit created by an educational agency’s failure over a given period of time to provide a FAPE to a student.”); Pihl v. Mass. Dept. of Ed. , 9 F.3d 184 (1 st Cir. 1993) (“compensatory education is available to remedy past deprivations”); Lester H. v. Gilhool, 916 F.2d 865 (3rd Cir. 1990), cert. denied 499 U.S. 923, 111 S.Ct. 317 (1991) (compensatory education is intended to be “an appropriate remedy to cure the deprivation of a child’s right to a free appropriate public education”); Miener v. State of Missouri , 800 F.2d 749 (8th Cir. 1986) (compensatory education intended to cure the deprivation of a handicapped child’s statutory rights).
18
Reid v. District of Columbia, 401 F.3d 516 (D.C. Cir. 2005).
19
Pihl v. Mass. Dept. of Ed. , 9 F.3d 184, 189 (1 st Cir. 1993) (The IDEA “may require services at a future time to compensate for what was lost”).
20
See, e.g., Reid v. District of Columbia, 401 F.3d 516 (D.C. Cir. 2005); Pihl v. Mass. Dept. of Ed. , 9 F.3d 184, 188 n. 8 (1 st Cir. 1993).
21
Massachusetts regulations utilize a regression standard to determine the need for summer services. 603 CMR 28.05(4)(d)1. Some federal courts have used a standard that the benefits accrued during a regular school year would be significantly jeopardized without summer services. E.g., Kenton County School District, v. Hunt , 384 F.3d 269, (6 th Cir. 2004).
22
Pihl v. Mass. Dept. of Ed. , 9 F.3d 184, 188 n. 8 (1 st Cir. 1993).
23
See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986) ; Nat’l Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735 (1 st Cir. 1995); Wynne v. Tufts University School of Medicine, 976 F.2d 791, 794 (1 st Cir. 1992).
24
The substance of this paragraph was included in the Order of the Summary Ruling issued on June 15, 2007 and is effective as of that date.
25
For the first time, on June 11, 2007 at the motion hearing, Parents requested additional relief in the form of translations of written information as needed for Parents during the summer and transportation for Parents to mandatory meetings at Melmark. Because of the lateness of Parents’ raising these concerns, I decline to consider them at this time. In the event that the parties are not able to resolve these remaining issues informally, Parents may seek further relief from the BSEA.