Pentucket Regional School District – BSEA # 10-6783



<br /> Pentucket Regional School District – BSEA # 10-6783<br />

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

In Re: Pentucket Regional School District

BSEA No. 10-6783

RULING ON PENTUCKET REGIONAL SCHOOL DISTRICT’S PARTIAL MOTION TO DISMISS

RELEVANT PROCEDURAL HISTORY

On April 23, 2010, Parents filed a hearing request with the Bureau of Special Education Appeals (BSEA) seeking an order compelling the Pentucket Regional School District to fund Student’s placement at the Landmark School for the summer of 2010 as well as for the 2010-2011 school year as “compensation” for prior alleged substantive and procedural violations. On June 4, 2010, Parent filed an amended hearing request seeking “compensation in the form of a free and appropriate educational placement with transportation for the 2010-2011 school year and 2011 extended year services.”1

On June 9, 2010, the School filed the above-entitled Partial Motion to Dismiss and Motion to Quash Subpoenas .2 Parent filed an Opposition to the School’s motion on June 15, 2010.

ISSUES PRESENTED

At issue here is whether Parent’s hearing request should be dismissed with respect to the claims that Parent is entitled to prospective private school placement to compensate Parent/Student for the following alleged failures on the part of Pentucket:

· Student failed to make effective progress during the life of an IEP covering January 2008 to January 2009;

· Parent was excluded from choosing Student’s 6 th grade general education classroom (2009-2010 school year);

· Student failed to make effective progress during the life of the IEP covering February 2009 through February 2010;

· The School failed to have an individual at the TEAM meetings with authority to commit funds.

POSITIONS OF THE PARTIES

Position of School

Parent’s claims relative to the IEPs from January 2008 to January 2009 and February 2009 to February 2010 must be dismissed because Parent had fully accepted both of these IEPs, did not reject them while they were in effect, and does not allege that they were not fully implemented. As a matter of law, the BSEA is prohibited from revisiting expired, accepted IEPs that have been implemented.

Parent’s claim regarding the sixth grade classroom must be dismissed because Parent has no legal entitlement to participate in the choice of specific instructional personnel, and the BSEA lacks jurisdiction over a regular education classroom placement.

Finally, Parent’s claim that the School did not include a person at TEAM meetings with authority to commit funds should be dismissed because it lacks factual foundation.3

Position of Parent

Contrary to the assertion of the School, Parent never accepted the IEP covering January 2008 to January 2009. Rather, Parent accepted a very limited portion of this IEP pertaining to MCAS accommodations. Otherwise, the IEP was fully rejected from February 2008 through October 2009.

Parent’s claim regarding the sixth grade classroom must not be dismissed. Parent alleges that the placement was made without TEAM involvement, without consideration of Student’s special needs, and was overly restrictive, all contrary to applicable federal and state statutes and regulations.

Parent did not address the issue of TEAM composition in her Opposition .

FACTS

For purposes of this Motion , the following factual assertions are deemed to be true, and are considered in the light most favorable to the Parent as non-moving party.

1. Student is a thirteen-year-old student with a disability who resides within the Pentucket Regional School District. His eligibility for special education is not in dispute. Student’s Parents live separately within the district. Although Student lives with each parent during alternate weeks, Mother asserts without opposition that she has sole educational decision-making rights for Student.

2. On January 11, 2008, Parents and School entered into a “ Resolution Agreement and Release ” providing that Student would be found eligible for special education (he previously had been found ineligible, but had a 504 Plan.)4 The Agreement further stated that Pentucket would issue an IEP for Student providing for specialized instruction in written language and math; that the IEP was attached to the Agreement and incorporated by reference, and that by signing the Agreement , Parents accepted the IEP. The IEP, which runs from January 9, 2008 through January 9, 2009 contains no parental response; however, each page contains what appears to be the initials of both Parents.

3. Finally, the Agreement stated that the TEAM would meet to consider a reading evaluation and determine whether or not Student required reading services in addition to written language and math instruction.

4. On January 9 and 17, 2008, the TEAM met to consider a reading evaluation that the School had conducted previously. On or about January 23, 2008, the School issued a Form N-1 which informed Parents that based on the reading evaluation, the School would not provide Student with specialized reading instruction.

5. By letter to the BSEA dated February 12, 2008, the School stated that it was forwarding a copy of a rejected IEP to the BSEA’s attention. Neither Mother nor the School requested a hearing. The documents submitted by the parties do not contain an IEP that is clearly identified as the rejected IEP sent to the BSEA.

6. On March 6, 2008, the School issued an amended IEP for Student covering the period from that date to January 2009. The amendment consisted of corrections to the IEP’s list of MCAS accommodations.

7. On March 8, 2008, Mother checked off the box accepting the IEP amendment referred to above, and wrote the following comment: I want to note that I am accepting this amendment because the accommodations were erroneously omitted…” Additionally, on Page 1 of the amendment, which contained the MCAS accommodations and no other content, Mother wrote: “This is only accepted portion of IEP at this time, all else still rejected.”

8. The School submitted with this Partial Motion to Dismiss an additional copy of the signature page referred to in Para. 7, above. This copy of the signature page contains a signature which appears to be that of Student’s Father, and indicates that the amendment was accepted in full on March 16, 2008. According to Mother, Father has had no educational decision-making authority since 2006..

9. The documentary record does not contain a signature page indicating the Mother’s response to the IEPs issued in February and/or March 2008, prior to the amendment.

10. At all relevant times, the IEPs under consideration called for Student’s placement in general education classrooms with accommodations and in-class and pullout services in areas of need.

11. In approximately June 2008, the School assigned Student to a sixth grade general education classroom taught by “Ms. M,” who was dually certified in elementary education and reading. Ms. M. and a second ELA teacher were scheduled to teach the reading and language arts to Student’s class (Ms. M.’s homeroom) on an alternating basis. Student’s class would have three additional, different teachers for, respectively, math, science and social studies.

12. This sixth-grade classroom was an “inclusion” classroom serving children both with and without disabilities. The class population allegedly included children with behavioral disabilities as well as one student who allegedly had assaulted Student in first grade.

13. Mother objected to the sixth grade classroom and teacher assignment referred to above because she felt that the teacher lacked sufficient recent experience and would be unable to manage a class effectively that included several children with behavioral issues, that the proposed teaching schedule would be too disruptive in light of Student’s disabilities, and that the presence of the child who allegedly had assaulted Student previously would cause Student stress and anxiety. Mother also claimed that the inclusion class was overly restrictive for Student, that the TEAM had determined that Student should be placed in a general classroom which, Mother asserted, would be a “non-inclusion” classroom, and the placement in the inclusion classroom was made without required parental and TEAM involvement, in violation of special education regulations.

14. Finally, Mother alleged that this placement was made in retaliation for Mother’s disputing the School’s determination of non-eligibility in January 2008.

15. During the summer of 2008, Mother expressed her disagreement with the placement, in writing, to various School officials, including the principal and officials from the superintendent’s office. Mother received responses to much of her correspondence.

16. Mother also filed a complaint with the US Office for Civil Rights (OCR) based on her allegations of retaliation; OCR dismissed this retaliation charge in December 2008.

17. In or about March 2009, the School issued a new IEP which Mother neither accepted nor rejected.

18. In September 2009, the School issued a new IEP covering September 25, 2009 to February 27, 2010. Mother accepted this IEP in full on October 5, 2009..

19. On February 11, 2010, pursuant to an annual review, Pentucket issued a new IEP. Mother rejected this IEP on April 13, 2010.

20. Pentucket proposed an evaluation in April 2010, and Mother accepted the proposed evaluation.

FINDINGS AND CONCLUSIONS

Standards for Motion to Dismiss

Under the Standard Adjudicatory Rules of Practice and Procedure , 801 CMR 1.01(7)(g)(3) and Rule 17B of the BSEA Hearing Rules for Special Education Appeals , a BSEA hearing officer may allow a motion to dismiss if the party requesting the appeal fails to state a claim on which relief can be granted. Since this rule is analogous to Rule 12(b)(6) of the Federal and Massachusetts Rules of Civil Procedure, BSEA hearing officers have generally used the same standards as the courts in deciding motions to dismiss for failure to state a claim.5

Specifically, a motion to dismiss should be granted only if the party filing the appeal can prove no set of facts in support of his or her claim that would entitle him or her to relief that the BSEA has authority to order. That is, a hearing officer may dismiss a case if he or she cannot grant relief under either the federal or state special education statutes or the relevant portions of Section 504 of the Rehabilitation Act, after considering as true all allegations made by the party opposing dismissal (here, the Mother), and drawing all reasonable inferences in his/her favor. Conversely, a hearing officer must deny a motion to dismiss if “accepting as true all well-pleaded factual averments and indulging all reasonable inferences in the plaintiff’s favor…if recovery can be justified under any applicable legal theory .” Caleron-Ortiz v. LaBoy-Alverado , 300 F.3d 60 (1 st Cir. 2002) Whitinsville Plaza, Inc. v. Kotseas , 378 Mass. 85, 89 (1979); Nader v. Citron , 372 Mass. 96, 98 (1977).

Generally, courts consider only the initial complaint and answer in deciding motions to dismiss, treating the motion as one for summary judgment if they consider materials in additional to these pleadings. Other information submitted by the parties may be considered, however, without formally converting the motion to dismiss to a motion for summary judgment. White v. Peabody Construction Co., 386 Mass. 121 (1982). Here, therefore, I am considering the attachments to the Motion and Opposition , in addition to the original and amended hearing request.

Based on the foregoing standard, the Partial Motion to Dismiss is DENIED, without prejudice, in part and ALLOWED, in part, as follows.

The Motion is DENIED as to claims regarding the School’s assignment of Student’s sixth-grade general education classroom and teacher. It is well-established that schools, and not parents, have the discretion to assign disabled students to particular classrooms (including general education classrooms) so long as the IEP of a child with disabilities can be implemented in the chosen classroom. Moreover, hearing officers may not second-guess a school’s choice of personnel, provided the staff persons at issue have the professional credentials and qualifications required by statute and regulation, and are appropriately qualified to implement the IEP services. Finally, while FAPE may necessitate a certain type of peer grouping, neither the right to an appropriate peer group nor LRE principles entitle an eligible child to a general education classroom devoid of other students with disabilities, or of students with particular types of disability.

Here, the Parent originally objected to the class assignment because she felt that the regular education teacher was too inexperienced to deal with Student’s needs, because she felt that the “inclusion” classroom contained too many other children with disabilities (which, she felt would have a detrimental effect on Student’s emotional status), and because she felt that the setup of this particular class would require more transitions between rooms, teachers and subjects than Student could handle, given his disabilities. In her Opposition , Parent further argued that the School did not consult with the TEAM in making the assignment, but rather, made an administrative decision without parental input.

If I accept Parent’s allegations as true for purposes of this Motion , make all reasonable inferences in her favor, and provide reasonable latitude for Parent to frame the issues in light of her pro se status, I must treat them as an assertion that the School could and/or did not implement Student’s IEP in the assigned classroom, or that even if it did implement the IEP, it did not provide Student with FAPE. This claim is one that the BSEA can consider; therefore, Mother may present evidence on this claim at hearing. Mother will carry the burden of proving that the placement complained of (1) was rejected and (2) resulted in a denial of FAPE to the Student.

The request to dismiss claims relative to the IEPs covering March 2008 to October 2009 is DENIED without prejudice, and with the limitation that Mother may only pursue relief relating to the period within the statute of limitations, i.e ., from April 22, 2008 forward. Dismissal is denied for the following reasons.

First, the School has asserted that Mother fully accepted the IEPs at issue. Mother disputes this assertion, and claims that she accepted only a limited amendment in March 2008. The documents submitted by the School do not refute Mother’s allegations. In fact, neither party has established the acceptance/rejection status of any IEPs issued or allegedly issued between January 2008 and October 2009, because neither party has provided a “paper trail” of complete IEPs, together with the corresponding parental responses, during the periods in question. (See Facts, above, Paras. 5, 8 and 9).

Because I must accept as true Mother’s allegation that she did not fully accept the IEPs at issue, her claims regarding those IEPs survive the Partial Motion to Dismiss , and Mother may present evidence regarding the appropriateness of these IEPs. I note, however, that at the hearing, Mother has the burden of establishing the “rejected” status of the IEPs as a threshold matter. Additionally, she must prove that these rejected IEPs were inappropriate at the time they were proposed, in light of the information then available to the TEAM. Otherwise, she is not entitled to relief.

Further, Mother must show that any alleged procedural violation (such as alleged failure by the School to obtain TEAM and parental input in making the sixth grade class assignment), resulted in a deprivation of FAPE. Even if Mother is able to prove the occurrence of procedural violations, she may be eligible for compensatory relief only if the violations deprived Student of FAPE. She is not entitled such relief for violations that are technical or de minimis , and did not cause Student to be deprived of educational benefit. See, for example, Murphy v. Timberlane Regional Sch. Dist. , 22 F.3d 1186, 1196 (1 st Cir. 1994).

Finally, the Partial Motion to Dismiss is ALLOWED with respect to Mother’s allegation that the School did not ensure that a District representative with authority to commit resources attended TEAM meetings. The School has denied this allegation within its Motion, and its supporting documents indicate that a special education coordinator attended TEAM meetings. Mother did not dispute the School’s evidence; therefore, this claim of a procedural violation is dismissed.

CONCLUSION AND ORDER

For the reasons stated above, the School’s Motion for Partial Dismissal is DENIED without prejudice with respect to Mother’s claim regarding the sixth grade placement and the IEPs for January 2008 though October 2009, provided that Mother may seek relief only within the statute of limitations, i.e., from April 22, 2008 forward. Mother’s claim that she is entitled relief because the School did not have staff with decision-making authority present at TEAM meetings is DISMISSED, without prejudice.

This matter shall go forward to hearing on October 19, 20 and 22, 2010, as previously ordered.

____________________ _____________________________

Dated: September 27, 2010

Sara Berman, Hearing Officer


1

It is understood that Parent still seeks placement at Landmark if Student is accepted.


2

This ruling addresses only the Partial Motion to Dismiss , as the parties are attempting to resolve the subpoena issue in advance of the hearing now scheduled for October 19, 20 and 22, 2010.


3

Parent did not address this issue in her Opposition.


4

Other than a brief reference in a document generated by the US Office for Civil Rights in December 2008, here is no indication from the parties’ pleadings or documents that the Agreement arose out of any matter before the BSEA; rather, it appears to be a purely private agreement between the parties.


5

See, for example, In Re: Inessa R. v. Groton Dunstable School District , BSEA No. 95-3104 (Byrne, November 1995); In Re Norfolk County Agricultural School, BSEA No. 06 -0390 (Berman, 2006),


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