Stoughton Public Schools and DESE – BSEA # 09-2276



<br /> Stoughton Public Schools and DESE – BSEA # 09-2276<br />

MASSACHUSETTS DEPARTMENT OF ELEMENTARY AND SECONDARY EDUCATION

Bureau of Special Education Appeals

In Re: Stoughton Public Schools & DESE

BSEA #09-2276

RULING ON DESE MOTION TO DISMISS

This matter comes before the Bureau on the Motion of the Department of Elementary and Secondary Education (“the Department”) to Dismiss for lack of jurisdiction the claim filed against it by The Parent, and the Parent’s Opposition thereto. The following undisputed facts provide the context for this Motion.

1.) During the 2005-2006 school year, the Student received special education services pursuant to an accepted IEP through the Stoughton Public Schools. In July 2006, Stoughton notified the parent that it had determined that she did not live in Stoughton. Stoughton then unilaterally “unenrolled” the eligible Student and his siblings. The Student did not receive special education services during the summer, 2006. The Parent disputed Stoughton’s residency determination but the matter was not resolved by the beginning of the 2006-2007 school year. The Student did not attend Stoughton Public Schools in September, October, November or December 2006. The Student was not enrolled in any public school during that time, nor did he receive any special education services from any other provider.

2.) On September 7, 2006, the Department’s Program Quality Assurance Office (“PQA”) became aware of the residency dispute between Stoughton and the Parent. By letter of September 19, 2006, a PQA educational specialist notified the Parent’s attorney of the results of her investigation of the residency dispute. She found that Stoughton had adhered to its own residency policy in determining that the Student did not live in Stoughton. Although acknowledging that the Student had “special needs”, PQA did not assign another local education agency to be responsible for providing a free, appropriate public education to the Student. The letter further indicated that “for matters related to special education, the parties may seek mediation and/or a Hearing through the Bureau of Special Education Appeals (BSEA) on the same issues addressed in this letter.”

3.) Neither the Parent nor the School sought the assistance of the BSEA in determining Stoughton’s responsibility for providing special education services to the Student during the time that the Student was not enrolled in any public school within the Commonwealth.

4.) The Student was re-enrolled in the Stoughton Public Schools on January 25, 2007.

5.) The Parent filed a request for hearing at the BSEA on September 29, 2008. The Parent seeks, among other requests, a finding that as a result of the actions and/or inactions of the Department and the Stoughton Public Schools, the Student was denied the free, appropriate public education to which he was entitled from July 2006 through January 25, 2007, and an appropriate award of compensatory educational services.

6.) On October 6, 2008, the Department submitted a Motion to Dismiss the Parent’s claim against it as barred by the two year Statute of Limitations set out in the IDEA 2004.1

7. ) The parties filed written arguments and counterarguments on this issue throughout the fall, 2008. Oral arguments were heard on January 14, 2009.

Discussion

First, I am grateful for the extraordinarily thoughtful and well-researched arguments presented by both the Student and the Department on the jurisprudence of claims intersecting with statutes of limitation. Those arguments, however, went well beyond what is necessary to address the issue before the BSEA. This matter concerns a relatively routine special education claim. In essence, the Student is asserting that both the Stoughton Public Schools and the Department failed to carry out their respective duties under the IDEA to ensure that he received the free, appropriate public education to which he was entitled between July 2006 and January 2007. The IDEA 2004 established a clear two year statute of limitations for appealing adverse actions or inactions of entities responsible for providing special education to eligible students:

A parent or agency shall request an impartial due process hearing within two years of the date the parent or the agency knew or should have known about the alleged action that forms the basis of complaint.
20 U.S.C. 1415 (f) (c). The two year “look back” has been adopted by default for special education appeals under Massachusetts state law as well. The IDEA explicitly provides for two exceptions to the limitations period:

1.) upon a showing that the local education agency had made a specific misrepresentation that the issue complained of had been resolved; and/or

2.) upon a showing that the local education agency withheld information from the parent that it was otherwise obligated under the IDEA to share.2

Here the Parent did not make the showing required by the IDEA to waive imposition of the two year statute of limitations. By operation of that statutory provision, the Student’s claim that Stoughton and the Department failed to ensure the delivery of necessary special education services to him is limited to the two year period immediately prior to the date on which the Parent’s BSEA hearing request was filed. In this matter, the relevant time period is September 29, 2006 to January 25, 2007.

This finding does not, contrary to the Department’s argument, relieve the Department of the obligation to participate as a party to this Hearing. The Department takes the position that the September 19, 2006 Program Quality Assurance letter concerning the residency dispute between the Student’s family and Stoughton is the sole Department “action” forming the basis of the Parent’s complaint. Since that letter is dated within the time period excluded by the IDEA’s statute of limitations, the Department’s argument goes, the Parent’s entire claim against the Department must fail. The PQA letter is, however, just one piece of this puzzle. While the date of letter may fall within the time period excluded under the IDEA’s statute of limitations, the IDEA’s mandate that the state agency act as the ultimate guarantor of a Student’s receipt of a free, appropriate public education does not. Thus, the Student may properly claim at the BSEA that for each school day occurring after September 29, 2006, that the Student did not receive FAPE, both Stoughton and the Department failed to fulfill their duties under state and federal special education law. Whether this claim can be supported through reliable factual evidence, and application of appropriate legal principles remains to be determined at Hearing.

ORDER

The Motion of the Department of Education to Dismiss the Student’s claim against it is GRANTED in part and DENIED in part. The Student’s claim against the Department for the time period September 29, 2006 through January 25, 2007 may proceed to Hearing. That part of the Student’s claim concerning events occurring or obligations arising prior to September 29, 2006 is DISMISSED .

By the Hearing Officer

________________________

Dated: February 19, 2009


1

20 U.S.C. 1415 (f) (c); 34 CFR 300.511 (e); see also BSEA Hearing Rule IC.


2

Exceptions to the timeline. The timeline described in subparagraph (C) shall not apply to a parent if the
parent was prevented from requesting the hearing due to:

(i) specific misrepresentations by the location educational agency that it had resolved

the problem forming the basis of the complaint; or

(ii) the local educational agency’s withholding of information from the parent that was

required under this part [20 USCS §§ 1411 et seq.]

20 U.S.C. 1415 (f) (d).


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