Luke v Tewksbury Public Schools – BSEA # 08-3766



<br /> Luke v Tewksbury Public Schools – BSEA # 08-3766<br />

COMMONWEALTH OF MASSACHUSETTS

SPECIAL EDUCATION APPEALS

BSEA #08-3766

LUKE1 v TEWKSBURY PUBLIC SCHOOLS

RULING

Tewksbury’s motion to dismiss is DENIED. On March 17, 2008 this matter was scheduled for hearing for April 2, 2008. Documents were to be filed on March 26, 2008. On March 26, 2008 Tewksbury filed a motion to dismiss along with its documents for hearing. Tewksbury’s motion is untimely.

In addition, Tewksbury’s motion does not warrant a motion to dismiss even if it was timely. Tewksbury assets that Mother’s request for reimbursement for math tutoring at the Kumon Center (Kumon) should be dismissed because a Hearing Officer may not order the school district to provide services for a student at a program that is unapproved or unaccredited. Both BSEA Rules and the Standard Adjudicatory Rules of Practice and Procedure governing BSEA proceedings provide that a Hearing Officer may allow a motion to dismiss if the moving party fails to state a claim upon which relief may be granted; see BSEA Rule 16B3, 801 CMR 1.01(7)(g)(3). Similarly, the federal courts have concluded that a motion to dismiss under Federal Rule of Civil Procedure 12 (b)(6) may be allowed if the court finds “beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v Gibson, 355 US 41, 45-46 (1957); Roeder v Alpha Indus. , 814 F. 2d 22, 25 (1 st Cir. 1987).

A Hearing Officer (and a Court) may order that a school district reimburse parent(s) for the costs of providing special education and related services for their eligible children if they demonstrate that the program and services offered by the school district are inappropriate or unavailable, and that the program and services that they obtain privately are appropriate. School Committee of Town of Burlington , Mass. v. Dept. of Education of Mass ., 471 U.S. 359, 369-70 (1985). To be deemed appropriate, so as to qualify parents for reimbursement, the parents’ chosen program need not be a state approved special education school, so long as it is does meet the federal FAPE standard. 34 CFR 300.403(c), Matthew J. v. Mass. Dept. of Education , 989 F. Supp. at 387, 27 IDELR 339 at 343-344 (1998), citing Florence County School District Four v. Carter , 510 US 7, 13 (1993); Thus, a parent may be reimbursed for the costs of a unilateral service or placement if that placement is “appropriately responsive to [a student’s] special needs;” i.e., so that the student can benefit educationally. Matthew J. , 27 IDELR at 344. Reimbursement is an equitable remedy. The amount of reimbursement to be awarded is determined by balancing the equities; see e.g. Burlington (supra).

Here if Parent can show by the preponderance of the evidence that Luke was denied a FAPE due to any procedural violations from Tewksbury, or that the School District has offered inappropriate services, and/or has not implemented the services2 and that the services offered at Kumon were appropriately responsive to her child’s needs so that he can benefit educationally, she will be reimbursed for math tutoring services at Kumon.

A hearing on this matter will occur on April 2, 2008 at 1:30 p.m. at the Bureau of Special Education Appeals, 11 Dartmouth Street, 1 st Floor, Malden, MA. Any requests for postponement must be made in writing. Should the Parties reach a settlement agreement, the moving party (Parent) must file a written withdrawal of the proceeding.

By the Hearing Officer:

Joan D. Beron

Dated: March 27, 2008


1

Luke is a pseudonym used for confidentiality and classification purposes in publicly available documents.


2

Luke’s IEP states that he should receive math tutoring. The Parties disagree about whether the services provided in the IEP are appropriate or were implemented.


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