Mike and Boston Public Schools – BSEA # 10-2417

<br /> Mike and Boston Public Schools – BSEA # 10-2417<br />

COMMONWEALTH OF MASSACHUSETTS

DIVISION OF ADMINISTRATIVE LAW APPEALS

BUREAU OF SPECIAL EDUCATION APPEALS

In Re: Mike1 and Boston Public Schools

BSEA# 10-2417

RULINGS ON MOTIONS FOR SUMMARY JUDGMENT

These rulings are rendered pursuant to M.G.L. Chapters 30A and 71B; 20 U.S.C. §1400 et seq.; 29 U.S.C. §794; and the regulations promulgated under these statutes.

BACKGROUND

Parent’s Hearing Request specified five (5) issues in dispute. One issue – Issue #3-has been withdrawn. Parent has moved for Summary Judgment on the four outstanding issues. Boston Public Schools (BPS) opposes Summary Judgment for Parent on these four issues. BPS also moves for Summary Judgment on Issues 4 and 5. Parent opposes Summary Judgment for BPS on these two issues.

ISSUES

1) Whether the IEP covering the period of June 2009 to June 2010 is designed to provide a free and appropriate education in the least restrictive environment for Mike for the 2009-2010 academic year and whether Mike received any meaningful academic benefit or a free appropriate public education during the year.

2) Whether BPS failed to implement the IEP from the prior school district thus depriving Mike of a free appropriate public education for the 2008-2009 academic year or altermotively, whether BPS failed to identify Mike as a in need of special education services during the period.

3) Whether BPS should have performed a Functional Behavioral Assessment due to Mike’s recurrent tardiness and absenteeism.

4) Whether BPS failed to include Transition Planning Form with the IEP.

STANDARD FOR SUMMARY JUDGMENT

801 CMR 1.01(7)(h) – Motion For Summary Decision provides:

When a Party is of the opinion there is no genuine issue of fact relating to all or part of a claim or defense and he is entitled to prevail as a matter of law, the Party may move, with a without supporting affidavits, for summary decision on the claim or defense. If the motion is granted as the part of a claim or defense that is not dispositive of the case, further proceedings shall be held on the remaining issues.

The Massachusetts Rules of Civil Procedure (MRCP) and the Federal Rules of Civil Procedure (FRCP) essentially parallel the above cited Administrative Rule. MRCP and FRCP Rule 56 provide that summary judgment may only be granted 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 the moving party is entitled to judgment as a matter of law. The party seeking summary judgment bears the burden of proof that there are no genuine issues of material fact on every relevant issue, Patterson v. Time, Inc. 404 Mass. 14, 17 (1989). Further, on a motion for summary judgment, all evidence and/or inferences are to be viewed in a light most favorable to the party opposing summary judgment. Anderson v. Liberty Lobby, Inc. 477 U.S. 232, 252 (1986)

ISSUE #1

Parent’s advocate has assembled school records, evaluations and reports which appear to indicate that Mike made little or no progress over the 2009-2010 school year. BPS’ attorney argues that there are substantial disputes as to material facts regarding issue #1 and attaches documentation that appear to support BPS’ contention that there are material facts in dispute and contradict a number of Parent’s facts. Further, BPS argues that Mike’s non attendance was a significant contributing factor to Mike’s progress. Finally, BPS argues that the appropriateness of Mike’s IEP is the central issue for hearing and is not appropriate for summary judgment.

RULING

Based upon the administrative and court rules governing the standards for summary judgment and the court decisions interpreting same, cited above, I find that there are clear disputes of material facts regarding issue #1. Additionally, the appropriateness of Mike’s IEP is indeed the primary issue in dispute. Therefore, summary judgment for Parent on ISSUE #1 is DENIED .

ISSUE #2

Parent argues and produces documentation that BPS failed to implement Mike’s IEP from Tennessee when he enrolled in BPS in January 2008. Mike then failed the rest of 7 th grade, repeated 7 th grade, failed it again, and that BPS did no evaluation until May 2009. Parent argues that BPS had an obligation to take reasonable steps to obtain Mike’s school records when he transferred into BPS. BPS argues that there are material facts in dispute and that Parent’s argument presupposes that BPS had knowledge at the time of Mike’s enrollment in BPS that he was receiving special education services in Tennessee. BPS argues that Parent never gave BPS Mike’s Tennessee IEP and that Parent never made BPS aware that Mike had received special education services or was on an IEP from Tennessee.

RULING

Based upon the standards governing summary judgment cited above, there are dispte of fact regarding BPS’ notice of Mike’s special education status and what obligation BPS had for discerning Mike’s special education status, if any. Therefore, summary judgment for Parent on ISSUE #2 is DENIED .

ISSUE #3 – Withdrawn

ISSUE #4

Parent argues and provides documentation that BPS failed to follow its own polices regarding attendance, failed to convene a team meeting, and failed to conduct a Functional Behavioral Assessment (FBA) to address Mike’s cronic tardiness and absenteeism which resulted in a denial of FAPE. BPS argues that it has now conducted an FBA so that this issue is now most.

Both Parent’s and BPS’ motions for summary judgment are DENIED regarding ISSUE #4.

Parent argues that BPS records show that during the 2008-2009 school year Mike was absent 49 days and tardy 27 days yet no FBA was performed to determine why such attendance issues were occurring or how to attempt to correct them. Parent also argues that through December 2009 Mike had already been absent 24 days. Parent and BPS both argue that Mike continues to be excessively absent from school. Yet the FBA did not occur until April 2010. BPS argues that its ability to perform an FBA for Mike was compromised by his virtual non-attendance.

While an FBA has now been done, the impact of the delay in performing the FBA and providing Mike FAPE, plus Mike’s absences contributing to the delay, may be addressed at the Hearing, along with the appropriateness of the April 2010 FBA.

ISSUE #5

Parent argues that BPS should have done a transition plan for Mike at age 14. Although BPS developed an transition plan for Mike in April 2010, Mike did not have a transition plan for almost 2 years. BPS argues that this issue is moot because BPS did a transition plan for Mike in December 2009 and a second transition plan in April 2010 but that Mike’s advocate has rejected it. BPS also argues that it has a agency to perform a vocational assessment on Mike when and if he ever comes to school.

Both Parent’s and BPS’ Motion for Summary Judgment are DENIED .

While an initial transition plan was written for Mike in December 2009, Mike turned 14 in December 2007. He transferred to BPS in January 2008. Boston’s notice regarding Mike’s special education status, along with the impact of the delay in proposing a transition plan for Mike may be addressed at the hearing.

ORDER

All of Parent’s and BPS’ Motions for Summary Judgment are DENIED .

By the Hearing Officer,

________________________________

Dated: September 10, 2010

Raymond Oliver


1

Mike is a pseudonym chosen by the Hearing Officer to protect the privacy of the student in publicly available documents.