COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
In Re: Student v. Medford Public Schools BSEA # 04-1448
ORDER
On September 15, 2003 the Parent in the above-referenced matter filed a request for Hearing. Thereafter, the Parent requested a Pre-Hearing Conference and asked that the Hearing be postponed until January 2004 to accommodate Parent’s counsel’s maternity leave. Medford Public Schools (hereinafter, “Medford”) also requested a postponement of the hearing on September 19 th due to unavailability of its counsel. A conference call was held on October 6 th at which time I suggested to the Parent’s counsel that given her unavailability through January 2004 she might consider withdrawing the request for hearing without prejudice and re-filing in January 2004 when she was able to proceed to hearing.
On October 7, 2004, the Parent’s counsel requested a postponement of the hearing and a notice of intent to proceed with discovery. The postponement was granted and the Hearing was scheduled to proceed beginning on January 14, 2004. The Order issued on October 8 th further contained a statement that there would be no postponements of the Hearing or reconsideration of the Order.
No further communication was received from the Parent between October 7, 2003 and January 13, 2004.
On December 16, 2003, Medford’s attorney filed a request for postponement of the Hearing and enclosed a Protective Order issued by Judge Johnston of Norfolk Juvenile Court deeming Medford’s attorney’s presence at a Care and Protection necessary and essential on December 19, 2003 and on January 15, 2004. In an Order issued by me on January 5, 2004, I granted Medford’s request in part, canceling the second day scheduled for hearing, reminded the Parties of my previous Order of October 8, 2003, and again reminding the Parties that the Hearing would begin on January 14 th as scheduled. Additionally, the deadline to submit exhibits was extended until the close of business on January 12, 2004.
On January 7, 2004 Medford’s counsel requested that a telephone conference call be scheduled to clarify what the Parent’s issues for hearing would be and a telephone conference call was scheduled for January 9, 2004. The morning of the conference call the Parent’s counsel notified the BSEA of her unavailability and suggested that the conference call be re-scheduled for January 13 th , the day before the hearing, or January 14 th , the first day of hearing.
Medford’s exhibits were received at the BSEA on January 12, 2004; nothing was received from the Parent.
On January 13, 2004, at 9:06 a.m., the day before the hearing, Medford sent a letter via facsimile citing her numerous attempts to communicate with the Parent’s attorney, stating that Medford was ready to proceed to hearing and asserting her ongoing concern about preparing unnecessarily for the hearing. In her letter she states that
“ On January 7, 2004, [she] spoke telephonically with Kristin Quinlan ([Student’s] DSS worker) and Jason Collins ([Student’s] probation officer). Both persons were unaware of the BSEA hearing date on January 14 th , moreover, both persons informed [her] that neither of them would be able to participate in a BSEA hearing on January 14 th because they needed to appear in the Middlesex Juvenile Court, Cambridge Division, for [Student]. [Student] was allegedly being submitted on a probation surrender [in] his CHINS case and the need to update the terms and conditions of his probation. Ms. Quinlan informed [her] that she planned to drive [Student] and his mother to the courthouse, so she was unaware how they too would be able to attend the BSEA proceeding. I personally met with both Ms. Quinlan and Mr. Collins at Middlesex Juvenile Court on January 8 th . They reiterated the above information… Lastly the deadline for the exchange of witness lists and documents passed yesterday at the close of business. [She] received no witness list or documents from [Student’s Attorney]. Pursuant to BSEA hearing rules Medford may now preclude [Student’s Attorney] from presenting witnesses or documents in support of the Student’s position. As a result of the totality of the above circumstances, I am hereby asking the BSEA to dismiss [Student’s] claims against Medford with prejudice and to issue an order releasing Medford Public Schools (and its third party witnesses) from having to appear at hearing tomorrow.”
On January 13, 2004, at 9:37 a.m., Parent’s Counsel sent a letter via facsimile filing a withdrawal of the Hearing, objecting to a dismissal of this matter with prejudice and citing her child care responsibilities for the delays in the prosecution of the case.
Upon consideration of the totality of the circumstances in this matter, the Parties’ actions and the requests made by both sides, I GRANT Medford’s request and hereby dismiss this matter WITH PREJUDICE and release Medford and its witnesses from appearing before the BSEA for hearing tomorrow morning. I further DENY the Parent’s request that the case be dismissed without prejudice and enter this Order nunc pro tunc to Medford’s request for dismissal which was received prior to the Parent’s withdrawal. The Parent’s blatant disregard for BSEA orders and timelines, including failure to submit a witness list and exhibits by the close of business on January 12, 2004, failure to notify the BSEA of her client’s unavailability to be called to testify at the hearing because of a pending proceeding in a separate forum, failure to prosecute and waiting until the day before hearing to file a withdrawal is unacceptable. As of this day the above-referenced matter is DISMISSED WITH PREJUDICE and therefore, closed.
So Ordered by the Hearing Officer,
____________________________________
Rosa I. Figueroa
Dated: January 13, 2004
The Dismissal by the Bureau of Special Education Appeals is a final action and is not subject to further agency review. Because 20 U.S.C. s.1415(i)(2)(A) requires the Bureau decision to be final and subject to no further agency review, the Bureau cannot permit motions to reconsider or to re-open a Bureau decision once it is issued. Any party aggrieved by the Bureau decision may file a complaint in the Superior Court of competent jurisdiction or in the District Court of the United States for Massachusetts for review of the Bureau decision. 20 U.S.C. s.1415(i)(2)(A). Under Massachusetts General Laws, Chapter 30A, Section 14(1), appeal of the final Bureau decision must be filed within 30 days of receipt of the decision.