COMMONWEALTH OF MASSACHUSETTS
DIVISION OF ADMINISTRATIVE LAW APPEALS
BUREAU OF SPECIAL EDUCATION APPEALS
Student v. Littleton Public Schools
BSEA # 2313812
Ruling on Cross Motion for Summary Judgment and Littleton’s Motion to Dismiss
Student resides within the Littleton Public School District (hereinafter, Littleton). He is not enrolled in Littleton and attends a public charter school. On or around June 4, 2020, Parents filed a Hearing Request with the BSEA (BSEA #2009921) seeking an order directing Littleton to fund an independent educational evaluation (IEE) for Student. Subsequently, Littleton agreed to fund an IEE conducted by a duly licensed and credentialed provider(s) at applicable state rates. This agreement was confirmed in writing via email correspondence from Littleton’s then-counsel on June 30, 2020. The then-Director of Pupil Services reiterated the agreement via email on July 1, 2020. Based on the foregoing, the Hearing Officer in the matter of BSEA #2009921 denied Parents’ request for summary judgment as moot and dismissed Parents’ hearing request on July 6, 2020. (See Parents’ Exhibit A, School’s Appendix 1.) On July 7, 2020, the Hearing Officer issued a Clarification of her Ruling. The clarification stated that dismissal of the case was required by and contingent on Littleton’s agreement and that if the district were to renege on the agreement Parents could file a new Hearing Request or file a complaint with the Problem Resolution System (PRS) of the Department of Elementary and Secondary Education (DESE). The Clarification urged Parents to inform Littleton as soon as possible regarding the areas they wished for the IEE to address as well as the name(s) of potential IEE providers so that Littleton could begin the contracting process. (See Parents’ Exhibit B, School’s Appendix 2.)
On July 8, 2020, Littleton’s then-Director of Pupil Service (Director) emailed Mother stating that she was “emailing to follow-up again” to ask for information regarding what type of evaluation Parent was seeking and with whom she would like to contract at the “applicable state rate.” On July 21, 2020, the Director emailed Mother stating that she was attempting to connect regarding the areas Mother wanted assessed by the IEE and potential providers who are qualified and take the applicable state rates. She reiterated Littleton’s agreement to fund the IEE with a qualified provider at the state rate and reminded Parent that the Hearing Officer instructed her to inform Littleton what areas she wanted assessed and the names of potential providers. The Director also offered to provide Mother with suggestions for IEE providers. (Littleton Appendix 3) On July 22, 2020, Mother emailed the Director, stating that as soon as Parents located providers with availability, they would provide her with information regarding what areas they wanted assessed and the names of qualified potential providers. (Littleton Appendix 3) On August 4, 2020, the Director emailed Mother and reminded her that qualified providers were required to take the applicable state rates for the given area assessed. She again offered her assistance in locating providers that accept state rates. (Littleton, Appendix 3)
On August 25, 2020, Mother emailed the Director and asked about a prior conversation during which Mother inquired about using the state rates to pay a private provider and Parents paying the remaining balance. Mother stated she would not be using a provider that accepts state rates. She then wrote, “I’m going under the assumption that you will pay the state rates and I will make up the difference for a private evaluator as we discussed, so if that offer is no longer on the table, please let me know so I can provide accordingly.” (Parents, Exhibit D) On August 25, 2020, Littleton’s then-counsel sent an email to Parent stating that there are ways to work with providers who accept state rates in which the district pays for a portion of an evaluation at the state-rate and a parent’s insurance or private pay covers other portions of the testing. She stated that technically, Littleton would not have to fund outside the state rate and would ask that she use a provider who accepts state rates. She mentioned that there “may be other creative solutions so that you can go with the evaluator you want even though they do not take the state-rate… but the district would need more information on the evaluator, evaluations you want conducted and billing/pricing structure that you are seeking in order to see if that would be possible here.” (Parents, Exhibit E)
On June 20, 2023, Parent emailed Littleton’s current Director and stated that per the ruling from BSEA # 2009921, she was submitting a request for reimbursement for an IEE for Student. (Littleton, Appendix 4) Parents provided Littleton with an invoice from a licensed clinical psychologist for testing provided on February 8, 9, and 16, 2021 in the amount of $3,250.00. (Littleton, Appendix 4)
On June 29, 2023 Parents filed the Hearing Request in the matter before me. In the request, Parents asserted that the Hearing Officer in the prior case ruled that Littleton must reimburse Parents for the entire cost of the IEE; that they had submitted the provider’s bill to Littleton on June 20, 2023; and that Littleton informed them that it would not be reimbursing Parents. Parents requested that the BSEA compel Littleton to “follow through on their legally binding contract” as Littleton was reneging on their prior agreement and Parents had no recourse other than to file a new Hearing Request.
Parents argue that they are entitled to summary decision in their favor because the burden of proof falls on Littleton to prove that cost-sharing the Student’s IEE was never an option. Further, they argue that the net effect would be the same if Littleton contracted with a provider and directly paid them at state rates or they directly reimbursed Parents at state rates for the services of a provider Parents contracted with who charges more than state rates. Parents state that nobody from Littleton has responded to them since August 2020. With respect to the statute of limitations, Parents argue that there was no explicit or implicit agreement to any timeline for reimbursement. They state that there have been extenuating services in their family during the past several years, including medical issues relating to their other children and the Covid-19 global pandemic which prevented them from submitting their request for reimbursement to Littleton prior to June 2023.
The undisputed evidence shows that the provider chosen by the Parents to conduct the IEE does not accept state rates as required by 603 CMR 28.04(5)(a). There was no prior agreement for the District to reimburse the parents for the cost of the evaluation performed by a provider that does not accept state rates. Summary judgment is appropriate, and the District prevails, as a matter of law on the question as to whether the District is required to reimburse the Parents for any of the cost of the evaluation.
With respect to its Motion to Dismiss, Littleton argues that Parents’ Hearing Request, filed on June 29, 2023, seeks reimbursement for an evaluation conducted on February 16, 2021, which is beyond the two-year statute of limitations for IDEA actions. Further Parents have not alleged any exception to the two-year statute of limitations. There have been no specific misrepresentations by the District that it had resolved the problem forming the basis of the complaint, and the District has not withheld information required to be provided to Parents under 20 U.S.C. §1415(f)(3)(D).
Summary Judgment Standard
1. Legal Standard for Motion to Dismiss and Motion for Summary Judgment
Hearing Officers are bound by the BSEA Hearing Rules for Special Education Appeals (Hearing Rules) and the Standard Rules of Adjudicatory Practice and Procedure, 801 Code Mass Regs 1.01. Pursuant to Rule XVII A and B of the Hearing Rules and 801 CMR 1.01(7)(g)(3), a hearing officer may allow a motion to dismiss if the party requesting the hearing fails to state a claim upon which relief can be granted. These rules are analogous to Rule 12(b)(6) of the Federal Rules of Civil Procedure. As such, hearing officers have generally used the same standards as the courts in deciding motions to dismiss for failure to state a claim, which require the fact-finder to make a determination based on a complaint or hearing request alone.
Unlike a motion to dismiss, which requires the fact-finder to make a determination based on a complaint or Hearing Request alone, evaluation of a motion for summary judgment permits the fact-finder to go beyond the pleadings to assess evidence. Pursuant to 801 CMR 1.01(7)(h), summary decision may be granted 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.” As with motions to dismiss, in determining whether to grant summary judgment, BSEA hearing officers are guided by the Federal and Massachusetts Rules of Civil Procedure, herein Rule 56, which provides that summary judgment may be granted only if the “pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there are no genuine issues as to any material fact and that the moving party is entitled to judgment as a matter of law.”
The party seeking summary judgment must first demonstrate, with the support of its documents (pleadings, affidavits, and other evidence), that there is no genuine issue of fact relating to the claim or defense. The moving party bears the burden of proof, and all evidence and inferences must be viewed in the light most favorable to the party opposing summary judgment. In response to a motion for summary judgment, the opposing party “must set forth specific facts showing that there is a genuine issue for trial.” An issue is genuine if it “may reasonably be resolved in favor of either party.” To survive this motion and proceed to hearing, the adverse party must show that there is “sufficient evidence” in her favor that the fact finder could decide for her. In other words, the evidence presented by the non-moving party “must have substance in the sense that it [demonstrates] differing versions of the truth which a factfinder must resolve at an ensuing trial.” The non-moving party’s evidence will not suffice if it is comprised merely of “conclusory allegations, improbable inferences, and unsupported speculation.”
In this matter, both Parties have moved for summary judgment. There are no genuine issues of material fact, based upon the motions and supporting evidence provided by each party. The undisputed facts show Parents filed a prior BSEA action seeking an Order for Littleton to provide an IEE. Littleton then agreed to fund an IEE conducted by an appropriately credentialed provider who accepts state rates, in accordance with 603 CMR 28.04(5)(a). Littleton reached out to Parents several times requesting information regarding the specific kind of evaluation Parents sought, the provider Parents wished to contract with, and offering Parents assistance in locating evaluators who abided by state rates. Each communication sent to Parents reiterated the requirement that Parents’ selected evaluator be appropriately credentialed and abide by state rates. Parents argue that cost-sharing had been discussed with the district on multiple occasions, and thus Parents are entitled to receive reimbursement for either the portion of the evaluation which represents the state rate or for the entire evaluation.
Although there is evidence that the possibility of a cost-share agreement was discussed, there is no evidence that any such agreement was ever reached. The last email communication between Littleton’s prior counsel and Mother, dated August 25, 2020, was a response to Mother’s August 25, 2020 email. Mother wrote, “I’m going under the assumption that you will pay the state rates and I will make up the difference for a private evaluator as we discussed, so if that offer is no longer on the table, please let me know so I can proceed accordingly.” Littleton’s then-counsel responded on the same day, “There may be other creative solutions so that you can go with the evaluator you want even though they do not take the state-rate. … but the district would need more information on the evaluator, evaluations you want conducted and billing/pricing structure that you are seeking in order to see if that would be possible here.” [emphasis added] (P- Exhibit E) There are no further communications between the Parties contained in the record before me. There is no evidence that Parents provided Littleton with any information regarding the evaluators they proposed using or the evaluations they sought. There is also no evidence that the Parties reached an agreement that Littleton would reimburse Parents for any portion of an evaluation conducted by a provider who did not abide by state rates. In fact, there is no evidence of communication between the Parties between the time that Littleton’s counsel provided Mother with clarification as to how it could be possible to use a provider who did not accept state rates and what information Littleton would require from Parents to determine whether such an arrangement would be possible, and when Parents submitted their request for reimbursement in June 2023. There is no evidence that Parents submitted any information to Littleton prior to obtaining the February 2021 evaluation.
Given the absence of any evidence as to the existence of an agreement to cost share the IEE, Parents have not demonstrated that they are entitled to relief as a matter of law. Hence, Parents’ Motion for Summary Judgment is DENIED. Likewise, based on the foregoing, Littleton has shown that it is entitled to a finding in its favor and its Motion for Summary Judgment is thus ALLOWED.
Motion to Dismiss
Even if Littleton’s Motion for Summary Judgment had not been allowed, Parents’ claims do not survive Littleton’s Motion to Dismiss. On June 29, 2023 Parents filed their Hearing Request seeking reimbursement for a private evaluation it had obtained in February 2021. On August 21, 2023, Parents filed a Motion to amend their hearing request to state that they are “now seeking full reimbursement for [Student]’s neuropsychological evaluation, rather than the reimbursement at the state rate that they had previously requested.” They further indicated that they were seeking “enforcement of a previous ruling [Ruling in BSEA #200992, dated July 6, 2020 and Clarification, dated July 7, 2020] for reimbursement at state rates”.
Using either the date of the Ruling Parents sought to enforce (July 2020) or the date of the evaluation for which they seek reimbursement (February 2021), Parents’ Hearing Request was filed beyond the statute of limitations period for requesting relief. The IDEA permits Parents to file claims regarding “an alleged violation that occurred not more than 2 years before the date the parent or public agency knew or should have known about the alleged action that forms the basis of the complaint.” 20 U.S.C. § 1415(b)(6)(B); 35 C.F.R. 300.507(a)(2) There are two exceptions to the above timeline: specific misrepresentations by the LEA that it had resolved the issue forming the basis of Parents’ Hearing Request and the LEA withholding information from the parent that was required to be provided to the parents. 34 CFR 300.511(f) Parents have not alleged either of the exceptions and the facts do not support the existence of an exception. Although the matter has been disposed of by the allowance of Littleton’s Motion for Summary Judgment, Littleton has also shown that the matter could have also been dismissed because it was filed outside of statute of limitations period.
If Parents have evidence of a contract in which Littleton agreed to cost-share an IEE conducted by a provider who does not accept state rates, they can raise their contract claims in a forum with pertinent jurisdiction, as the statute of limitations for contract claims is longer than the two-year statute of limitations proscribed for IDEA claims.
Parents’ Motion for Summary Judgment is DENIED.
Littleton’s Motion for Summary Judgment is ALLOWED.
Even if Littleton’s Motion for Summary Judgment had not been allowed, Parents’ claim would fail in the face of Littleton’s Motion to Dismiss, since the matter was filed outside of the two-year statute of limitations.
Dated: September 11, 2023
COMMONWEALTH OF MASSACHUSETTS
DIVISION OF ADMINISTRATIVE LAW APPEALS
BUREAU OF SPECIAL EDUCATION APPEALS
EFFECT OF FINAL BSEA ACTIONS AND RIGHTS OF APPEAL
Effect of BSEA Decision, Dismissal with Prejudice and Allowance of Motion for Summary Judgment
20 U.S.C. s. 1415(i)(1)(B) requires that a decision of the Bureau of Special Education Appeals be final and subject to no further agency review. Similarly, a Ruling Dismissing a Matter with Prejudice and a Ruling Allowing a Motion for Summary Judgment are final agency actions. If a ruling orders Dismissal with Prejudice of some, but not all claims in the hearing request, or if a ruling orders Summary Judgment with respect to some but not all claims, the ruling of Dismissal with Prejudice or Summary Judgment is final with respect to those claims only.
, the Bureau cannot permit motions to reconsider or to re-open either a Bureau decision or the Rulings set forth above once they have issued. They are final subject only to judicial (court) review.
Except as set forth below, the final decision of the Bureau must be implemented immediately. Pursuant to M.G.L. c. 30A, s. 14(3), appeal of the decision does not operate as a stay. This means that the decision must be implemented immediately even if the other party files an appeal in court, and implementation cannot be delayed while the appeal is being decided. Rather, a party seeking to stay—that is, delay implementation of– the decision of the Bureau must request and obtain such stay from the court having jurisdiction over the party’s appeal.
Under the provisions of 20 U.S.C. s. 1415(j), “unless the State or local education agency and the parents otherwise agree, the child shall remain in the then-current educational placement,” while a judicial appeal of the Bureau decision is pending, unless the child is seeking initial admission to a public school, in which case “with the consent of the parents, the child shall be placed in the public school program.”
Therefore, where the Bureau has ordered the public school to place the child in a new placement, and the parents or guardian agree with that order, the public school shall immediately implement the placement ordered by the Bureau. School Committee of Burlington v. Massachusetts Department of Education, 471 U.S. 359 (1985). Otherwise, a party seeking to change the child’s placement while judicial proceedings are pending must ask the court having jurisdiction over the appeal to grant a preliminary injunction ordering such a change in placement. Honig v. Doe, 484 U.S. 305 (1988); Doe v. Brookline, 722 F.2d 910 (1st Cir. 1983).
A party contending that a Bureau of Special Education Appeals decision is not being implemented may file a motion with the Bureau of Special Education Appeals contending that the decision is not being implemented and setting out the areas of non-compliance. The Hearing Officer may convene a hearing at which the scope of the inquiry shall be limited to the facts on the issue of compliance, facts of such a nature as to excuse performance, and facts bearing on a remedy. Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief, including referral of the matter to the Legal Office of the Department of Elementary and Secondary Education or other office for appropriate enforcement action. 603 CMR 28.08(6)(b).
Rights of Appeal
Any party aggrieved by a final agency action by the Bureau of Special Education Appeals may file a complaint in the state superior court of competent jurisdiction or in the District Court of the United States for Massachusetts, for review. 20 U.S.C. s. 1415(i)(2).
An appeal of a Bureau decision to state superior court or to federal district court must be filed within ninety (90) days from the date of the decision. 20 U.S.C. s. 1415(i)(2)(B).
In order to preserve the confidentiality of the student involved in these proceedings, when an appeal is taken to superior court or to federal district court, the parties are strongly urged to file the complaint without identifying the true name of the parents or the child, and to move that all exhibits, including the transcript of the hearing before the Bureau of Special Education Appeals, be impounded by the court. See Webster Grove_School District v. Pulitzer Publishing
Company, 898 F.2d 1371 (8th. Cir. 1990). If the appealing party does not seek to impound the documents, the Bureau of Special Education Appeals, through the Attorney General’s Office, may move to impound the documents.
Record of the Hearing
The Bureau of Special Education Appeals will provide an electronic verbatim record of the hearing to any party, free of charge, upon receipt of a written request. Pursuant to federal law, upon receipt of a written request from any party, the Bureau of Special Education Appeals will arrange for and provide a certified written transcription of the entire proceedings by a certified court reporter, free of charge.
 The facts are established for purposes of this Ruling only.
 Rule 12(b) of the Federal Rules of Civil Procedure
 801 CMR 1.01(7)(h).
 Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 252 (1986); see also In Re: Westwood Pub. Schl., BSEA # 10-1162 (Figueroa, 2010); In Re: Mike v. Boston Pub. Sch., BSEA # 10-2417 (Oliver, 2010); Zelda v. Bridgewater-Raynham Pub. Sch. and Bristol Cty Agricultural Sch., BSEA # 06-0256 (Byrne, 2006).
 Anderson, 477 U.S. at 250.
 Maldanado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 581 (1st Cir. 1994).
 Anderson, 477 U.S. at 249.
 Mack v. Great Atl. & Pac. Tea Co., 871 F.2d 179, 181 (1st Cir. 1989).
 Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990).