COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Home tutoring1
BSEA # 08-0305
RULING ON MOTION TO DISMISS OR SUMMARY DECISION
On September 21, 2007, Parents filed with the Bureau of Special Education Appeals (BSEA) a Hearing Request , seeking, in part, a determination that the school district was not complying with its responsibilities to provide Student with home tutoring.
On October 22, 2007, the school district filed a Motion to Dismiss or for Summary Decision on Home Tutoring Claim ( Motio n), seeking an order dismissing Parents’ claim regarding tutoring. The school district takes the position that the tutoring for Student is a regular education, rather than a special education, service and therefore is outside the scope of the BSEA’s jurisdiction.
Standard of Review
Although the school district has entitled its Motion to include both a motion to dismiss and a motion for summary decision, the Motion reads as a request only for dismissal of a part of Parents’ claims. Accordingly, I consider the school district’s Motion under a motion to dismiss standard of review.
The BSEA Hearing Rules and the Standard Adjudicatory Rules of Practice and Procedure governing BSEA proceedings both 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.2 The federal court rules provide guidance, and in that forum, 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/her claim which would entitle him to relief.”3
I consider any theory of law relevant to Parents’ claims and consider the allegations in the Hearing Request to be true, as well as all reasonable inferences in the Parents’ favor.4
Background
The following facts are not in dispute.
Student is a twelve-year-old, seventh grader enrolled in the school district. Student has a specific learning disability, which negatively impacts his reading and written expression.
Parents originally filed a Hearing Request with respect to three issues – home tutoring, implementation of the IEP, and compliance with a written health plan. Parents have withdrawn the third issue (written health plan).
With respect to Parents’ tutoring claim, the Hearing Request identifies the issue as the school district’s alleged failure to provide a tutor who will provide the tutoring in Student’s home, rather than in a public place. Parents’ Hearing Request does not explain the purpose of the tutoring or whether the tutoring is considered a special education, or regular education, service. Similarly, Parents’ Hearing Request does not provide any information regarding Student’s disability or special education services.
The school district’s Motion includes, as attachments, an unsigned IEP for the period 7/17/07 to 6/4/08 (exhibit B) and a fully-accepted IEP for the period 6/14/06 to 6/13/07 (exhibit A). There is no indication within the fully-accepted IEP, nor within the more recent, un-signed IEP, that Student has a health or other impairment that would require that he be absent from school. Similarly, there is no indication within either IEP that Student is to receive tutoring during the school year.
The fully-accepted IEP (which, presumably, governs the services to be provided by the school district currently) includes the following direct special education services: (1) language arts by a special education teacher for thirty minutes, three times per week, (2) rules-based reading by a special education teacher for forty minutes, four times per week, and (3) four weeks of summer tutoring services for reading by a special education teacher for forty-five minutes, three times per week. Exhibit A.
Legal Framework
As a general rule, there are two kinds of tutoring that may be provided to a special education student pursuant to state and federal special education law and regulations.
First, tutoring services may be provided pursuant to the federal special education law (IDEA) as special education or related services. This might take the form, for example, of Wilson reading tutoring services or, as in the instant dispute, tutoring services during the summer. These tutoring services could be provided in the home, although this would be unusual since the home would likely be the most restrictive setting. These tutoring services are generally discussed and planned for during an IEP Team meeting, and they would likely appear on the student’s IEP.
The second kind of tutoring service (sometimes referred to as “home tutoring”) is what is at issue in the instant dispute. These tutoring services are provided under the state special education law (MGL c. 71B, s. 2) and state special education regulations (603 CMR 28.03(3)(c)). In contrast to the tutoring under the IDEA (as described above), the home tutoring services are provided when, as determined through a physician’s written statement, the student must remain at home or in a hospital for not less than fourteen school days in any school year. State regulations (603 CMR 28.04(4)) further provide that when the student is likely to remain at home or in a hospital for more than sixty school days in a school year, the IEP Team must convene, consider what evaluations may be needed and, if appropriate, amend the existing IEP or develop a new IEP to address the student’s then particular circumstances.
It is noteworthy that although the home tutoring services are set forth within state special education law and regulation, the home tutoring services may be provided as special education services or regular education services. In the following sentence, the state regulations explain when these tutoring services are considered a special education, rather than a regular education, service:
Such educational services shall not be considered special education unless the student has been determined eligible for such services, and the services include services on the student’s IEP.
The first part of this sentence – “the student must be eligible for special education services” – is unambiguous. However, the second part of the sentence – “the services include services on the student’s IEP” – lacks clarity principally because of the double use of the word “services” although when read within the context of the regulations as a whole, the first use of “services” may be understood as referring to home tutoring services and the second use of “services” may be understood as referring to any services included within the IEP.
DOE has issued written guidelines on the implementation of these regulations through its Question and Answer Guide on the Implementation of Educational Services in the Home or Hospital, 603 CMR 28.03(3)(c) and 28.04(4) (issued February 1999, revised February 2005) (Guidelines). In its answer to question # 1 (“What is the Intent of the Massachusetts Regulations on Educational Services in the Home or Hospital?”), the Guidelines first quote the relevant DOE home tutoring regulations and then include the following as an interpretation of these regulations:
Although the regulation on home/hospital instruction is included in the Special Education Regulations (603 CMR 28.00), home/hospital instruction is not considered “special education” unless the student has been found eligible for special education.
This sentence of the DOE Guidelines appears to disregard the regulatory language “and the services include services on the student’s IEP” and may be understood as concluding that home tutoring services are to be considered special education services so long as the student is eligible for special education.
This raises the question of whether the DOE interpretation of its own regulations is entitled to deference. The answer may depend on whether the regulatory language being interpreted is ambiguous. The Supreme Court has explained as follows:
In Auer , we held that an agency’s interpretation of its own regulation is entitled to deference. But Auer deference is warranted only when the language of the regulation is ambiguous. The regulation in this case, however, is not ambiguous …. To defer to the agency’s position would be to permit the agency, under the guise of interpreting a regulation, to create de facto a new regulation.5
I now apply this legal framework to the facts of the instant dispute.
Discussion
The question presented by the school district’s Motion is whether the BSEA has jurisdiction over Parents’ home tutoring claim. For purposes of the school district’s Motion , it is not disputed that Student has a claim for home tutoring. The school district asserts, however, that any such claim is for regular education (rather than special education) services and for this reason, is outside of the BSEA’s jurisdiction.
A BSEA Hearing Officer’s jurisdiction is found within both the state and the federal special education laws and their implementing regulations. When these authorities are read together, the BSEA jurisdiction may be understood as limited to (1) identification, eligibility, evaluation, placement, IEP, and provision of special education in accordance with state and federal law, (2) procedural protections of state and federal law for students with disabilities, and (3) a parent’s claims regarding 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 §§104.31-104.39.6
In order for the BSEA to have jurisdiction over tutoring, there must be a nexus between the tutoring and Student’s rights under state and federal special education law or under Section 504. Under special education law, BSEA jurisdiction may extend to tutoring services that are considered a special education or related service to which the student is entitled. Home tutoring services under the state special education law may, for example, be intended to make up for missed special education services that appear on an IEP and, if so, this would bring the dispute under the BSEA’s jurisdiction. In addition, under Section 504 and special education law, BSEA jurisdiction may extend to home tutoring services that are necessary as an accommodation to an impairment or disability, in order to allow the student to access the curriculum.
In order to determine whether the BSEA has jurisdiction under one or more of these principles, sufficient factual information must be provided regarding the nature or purpose of the tutoring, and the nature of the disability or impairment that is causing Student to miss school. In the instant dispute, neither party has provided this factual information to the Hearing Officer. For this reason, the school district has not established that Parents’ claims must be dismissed for lack of jurisdiction, and its Motion must be denied.
The school district argues to the contrary. The school district relies on the undisputed facts that in neither the current unsigned IEP nor last-year’s signed IEP is there any reference either to home tutoring or to a health or similar impairment that might cause Student to miss school for fourteen or more days. The school district further relies on the sentence of the state regulations (quoted, above, in the Legal Framework part of this Ruling), which may be understood as requiring that the home tutoring services appear on the IEP in order for the home tutoring to be considered special education services. I am not persuaded for the following reasons.
As discussed above in the Legal Framework part of this Ruling, the kind of tutoring that is the subject of the instant dispute falls under state law and regulations as home tutoring. The home tutoring is triggered not necessarily by an IEP Team meeting, but rather by a doctor’s written statement that the student is likely to miss at least fourteen school days. The state regulations further indicate that an IEP amendment or a new IEP (reflecting a student’s changed circumstances) may not be necessary unless the student is likely to miss sixty or more school days in a school year. Until the latter determination has been made, there is no reason to believe that a student’s current IEP would necessarily reflect the home tutoring services that are being provided by the school district or would necessarily reflect the impairment that is causing the student to miss school. Making all reasonable inferences in Parents’ favor (as I must when ruling on a school district’s motion to dismiss), I assume for purposes of this Ruling that no determination has been made that Student is likely to miss sixty school days and that the school district has not had been required, pursuant to DOE regulations, to amend or revise Student’s IEP to reflect the need for home tutoring services and the impairment that is causing Student to miss school.
For these reasons, the fact that Student’s IEPs neither reflect tutoring services nor include an impairment that may result in Student’s missing school cannot be considered determinative of whether Parents have a home tutoring claim falling under the BSEA’s jurisdiction. The school district’s premise for seeking dismissal of the home tutoring claim fails on this basis.
I also note that the DOE Guidelines, quoted above in the Legal Framework section of this Ruling, may be interpreted as concluding that home tutoring is a special education service simply because a student is eligible to receive special education services. This interpretation, if credited, would bring Parents’ tutoring claim under the BSEA’s jurisdiction regardless of what might be written in the IEP. However, neither the school district’s Motion nor Parents’ opposition addressed the Guidelines for purposes of its interpreting the state regulations relevant to home tutoring. Also, there are additional reasons (explained above) for denying the school district’s Motion , making it unnecessary that I determine the implications of the Guidelines on the present dispute. For these reasons, I decline to rely on the Guidelines for purposes of this Ruling.
ORDER
The school district’s Motion to Dismiss or for Summary Decision on Home Tutoring Claim is DENIED without prejudice.
By the Hearing Officer,
_________________
William Crane
Date: November 8, 2007
1
This decision has been modified for public dissemination. The student’s name and all other information that could reasonably lead to the identification of the student has been rephrased or removed. This is not the “official record” decision.
2
BSEA Rule XVIIB; 801 CMR 1.01(7)(g)3. Regulations found at 801 CMR 1.01 govern BSEA proceedings. See 603 CMR 28.08(5)(b).
3
Judge v. City of Lowell , 160 F.3d 67, 72 (1st Cir. 1998) (quoting Conley v.Gibson , 355 U.S. 41, 45-46 (1957)).
4
See Caleron-Ortiz v. LaBoy-Alvarado , 300 F.3d 60 (1st Cir. 2002) (“accepting as true all well-pleaded factual averments and indulging all reasonable inferences in the plaintiff’s favor” a motion to dismiss will be denied if recovery can be justified under any applicable legal theory). See also Whitinsville Plaza, Inc. v. Kotseas , 378 Mass. 85, 89 (1979); Nader v. Citron , 372 Mass. 96, 98 (1977).
5
Christensen, et al. v. Harris Count, et al ., 529 US 576 (2000) (internal citations omitted).
6
20 USC § 1415(b)(6); 603 CMR 28.08(3).