Rockport Public Schools – BSEA #01-4954

<br /> Rockport Public Schools – BSEA #01-4954<br />

COMMONWEALTH OF MASSACHUSETTS

SPECIAL EDUCATION APPEALS

In Re: Rockport Public Schools

BSEA # 01-4954

RULING

Introduction

On November 30, 2001, the attorney for Rockport Public Schools (hereafter, Rockport) filed a Motion to Dismiss , arguing that this matter should be dismissed because the Parents have consented to Rockport’s proposed IEP, thereby resolving all of Parents’ claims regarding special education and related services.

On December 3, 2001, Parents’ attorney filed a Request for an Administrative Order (hereafter, Request for Order ), seeking from the Hearing Officer an order that would include:

1. An affirmation of the agreement reached by the parties, as reflected in the IEP;

2. A determination that the legal relationship between the parties was altered when Rockport offered and Parents accepted the IEP; and

3. A determination that Parents are the prevailing party and are entitled to an award of attorney’s fees, costs and expert witness’ fees.1

This Ruling addresses both the Motion to Dismiss and the Request for Order .

Issue

After one day of Hearing, the special educational issues were resolved informally by the parties as a result of the Parents’ consent to the School District’s proposed IEP. Are Parents then entitled to an administrative order that would provide

1. an “affirmation” of the parties’ informal resolution, and

2. a determination that as a result of the informal resolution,

· Parents’ legal relationship has been altered,

· Parents are the prevailing party, and

· Parents are entitled to an award of attorney’s fees, costs and expert witness’ fees?

Statement of the Case

The relevant facts are not in dispute.

On June 1, 2001, Parents, through their attorney, filed with the Bureau of Special Education Appeals (hereafter BSEA) a Request for Hearing, stating that Parents have accepted Rockport’s proposed substantially separate program of services but reject placement at the Rockport Middle School.

A Pre-Hearing Conference was held on August 1, 2001, at which time Rockport proposed to Parents that Student enroll in the Rockport Middle School in September 2001 in order to give Rockport an opportunity to provide certain special education and related services and to give Student an opportunity to try out these services before deciding whether a Hearing was necessary to resolve the disputed placement. Parents agreed to try out the proposed services, and a Hearing was scheduled for November 6, 13 and 14, 2001 in the event that it was needed.

During the fall of 2001, the parties were unable to resolve their differences. Parents took the position that Rockport continued to be unable to provide the needed services within the public school system and that such services should therefore be provided at a private school, and specifically proposed a placement at the Landmark School. Rockport maintained that the special education and related services described in the IEP were appropriate and could be provided in the Rockport Middle School, and therefore proposed that Student continue to attend the public middle school program. The dispute then proceeded to Hearing.

The issue for Hearing was whether the IEP proposed by Rockport was reasonably calculated to assure Student’s maximum possible educational development in the least restrictive environment consistent with that goal, and whether the required special education services could be provided within the public school setting or, alternatively, should be provided at Landmark. The disputed issues related solely to current and prospective services; no claims were made regarding past violations or compensatory services due Student.

A full day of Hearing occurred on November 6, 2001. The Hearing included extensive testimony by two expert witnesses called by Parents. Both parties had filed extensive documents which were admitted into evidence during the first Hearing day.

By letter of November 8, 2001, the Rockport Director of Special Education advised Parents that he had “decided to agree with your request to place [Student] at the Landmark School” and that a Team meeting would be scheduled to develop a new IEP. Parents’ attorney advised the Hearing Officer that a settlement was likely, and the parties jointly requested postponement of the second day of Hearing, which was granted. On November 21, 2001, Parents consented to Rockport’s newly-proposed IEP, placing Student at the Landmark School. However, Parents continued to seek agreement from Rockport with respect to what Parents describe as a “written private settlement agreement which resolves all disputes between the parties.”

Rockport then filed its Motion to Dismiss and Parents filed their Request for Order , both of which are described above in the Introduction section of this Ruling. On December 17, 2001, the parties filed written arguments on the Motion to Dismiss and Request for Order , and a telephonic Hearing was held on both matters on December 20, 2001.

Findings and Conclusions

Parents take the position that the Hearing Officer has sufficient evidence (including the testimony of Parents’ experts, extensive documents admitted into evidence and the signed IEP) to make a determination that the Parents are the prevailing party, and further argue that the Hearing Officer has both the authority and the obligation to affirm the offer and acceptance of the IEP. Parents therefore urge that its Request for Order be allowed and that this matter not be dismissed.

Rockport takes the position that the Hearing Officer does not have the authority to issue the requested orders and further argues that all issues over which the Hearing Officer has jurisdiction have been resolved through the Parents’ consent to Rockport’s proposed IEP, placing Student at the Landmark School. Rockport therefore urges that its Motion to Dismiss be allowed.

1. Authority of the Hearing Officer to Issue an Order Relevant to Attorney’s Fees .

I will first review generally the subject of attorney’s fees and related costs pursuant to federal and state special education law, and then will more specifically address Parents’ Request for Order .

The federal special education statute and regulation provide that a federal district court, in its discretion, may award reasonable attorney’s fees and related costs to parents (of a child with a disability) who are the “prevailing party”.2 The First Circuit Court of Appeals has concluded that to qualify as a “prevailing party”, a litigant must demonstrate that: (1) he obtained relief on a significant claim in the litigation; (2) such relief effected a material alteration in his legal relationship with the defendant; and (3) the alteration is not merely technical or de minimis in nature.3

The Court further explained that a party may demonstrate the required alteration in legal relationship in one of two ways: “The party either must enjoy bottom-line success in the litigation or act as a catalyst in causing the desired alteration.”4 However, through its decision in Buckhannon , the United States Supreme Court has recently rejected the applicability of the “catalyst” theory to an attorney’s fee dispute involving a housing discrimination claim.5

Pursuant to the federal special education statute and regulations, a parent has the right to an impartial due process hearing “with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to such child.”6 The due process hearing is overseen by an administrative hearing officer who then issues a decision resolving the disputed issues. The federal statute and regulations establishing the due process hearing and describing the role of the administrative hearing officer do not include language giving the hearing officer the authority to award attorney’s fees.7

I am aware of no judicial decision which has indicated that an administrative hearing officer has the authority to award attorney’s fees. Similarly, the reported decisions of administrative hearing officers conclude that the hearing officer does not have the authority to award attorneys fees pursuant to the federal statute.8

The federal Department of Education has made it clear that although the federal statute and regulations do not give an administrative hearing officer the authority to award attorney’s fees, a state may choose to grant this authority to the hearing officer.9 However, Massachusetts has not done so.

Massachusetts’ statutory language regarding the role of the Hearing Officer focuses on the “evaluation of the child and the appropriate education program”, giving the Hearing Officer the authority to order “educational placement and services” that the Hearing Officer determines appropriate and consistent with the law.10 Similarly, the relevant sections of the state special education regulations do not reference attorneys fees or related costs.11 BSEA Hearing Officers have consistently concluded that they do not have the authority (under either state or federal law) to award attorneys fees.12

I conclude that the federal district court has original jurisdiction to hear and decide attorney’s fee claims and related costs, and that a BSEA Hearing Officer has no authority to do so pursuant to the applicable federal and state special education statute and regulations.

I now turn to a consideration of Parents’ request for an administrative order.

Parents’ Request for Order includes several components. First, Parents seek an order that they are “entitled to an award of attorney’s fees, costs and expert witness’ fees incurred in this matter.” In other words, although Parents have not actually requested that this Hearing Officer require that the fees and costs be paid to Parents, they nevertheless seek an order that they are “entitled” to those fees and costs.

In order to make a determination that Parents are “entitled” to an award of attorneys fees and related costs, this Hearing Officer would have to determine the appropriate legal standard (subsequent to Buckhannon ) and make the requisite factual and legal findings. To do so would, in effect, place the Hearing Officer into the role reserved to a federal court pursuant to its original jurisdiction over the subject of attorney’s fees and related costs. I find no justification or authority for doing this.

Second, Parents seek an order from this Hearing Officer that the legal relationship between the parties was altered when Rockport offered and Parents accepted the new IEP calling for placement at Landmark, and that Parents are the “prevailing party”. As noted above, the First Circuit has concluded that a finding of alteration of legal relationship is necessary to establish “prevailing party” status which in turn is necessary to prove Parents’ attorney’s fee claim.

As with the more general issue of attorney’s fees, these subsidiary issues fall within the province of a federal district court’s original jurisdiction since they must necessarily be addressed by the court in its resolution of an attorney’s fee claim.

T he federal special education statute (and the federal courts on the basis of this statute) require litigants to exhaust the administrative due process procedures available to resolve special education claims prior to being heard in court.13 If the federal courts believed that administrative hearing officers should address the issues of alteration of legal relationship and prevailing party status, one may assume that there would be federal court decisions ordering that an attorney’s fee dispute be returned to the hearing officer in order to make these legal and factual findings. I am aware of no judicial decision which has ordered that an attorney’s fee claim be first considered by an administrative hearing officer or that has required subsidiary findings be made by an administrative hearing officer prior to judicial determination of attorney’s fees.14

Parents have cited to numerous administrative hearing officer decisions in other states where the Hearing Officer’s decision includes a statement as to which party prevailed.15 However, in each of these cited cases, the determination of prevailing party status was made as part of a decision on the merits. To the contrary in the present controversy, Parents seek a determination of prevailing party status solely within the context of an attorney’s fee dispute which is within the original jurisdiction of the federal court.

For these reasons, I find that it would be inappropriate for this Hearing Officer to issue an order with respect to the issues of alteration of legal relationship and prevailing party status, as those terms are used within the attorney’s fee context.

Parents’ appropriate forum to address their attorney’s fee claims is the federal district court.

2. An Order Affirming the Settlement of the Parties .

Parents also seek an order that includes an “affirmation of the agreement reached by the parties when defendant offered and plaintiff accepted a new IEP and immediate placement at the Landmark School.” In this case, the referenced “agreement” is the IEP itself, rather than the settlement agreement which Parents are continuing to attempt to negotiate with Rockport.

In their written submission, Parents do not explain what the Hearing Officer is being asked to do in order to “affirm” the parties’ agreement – for example, is the Hearing Officer being asked simply to affirm that the parties have voluntarily entered into an agreement to resolve their dispute or is the Hearing Officer also affirming that the services agreed to are appropriate? However, during the Hearing on the Request for Order , Parents’ attorney made it clear that Parents seek to replicate essentially what occurred in a recent federal district court case. In that case, the parents requested a due process hearing, seeking to have the school district provide student with specialized instruction under the federal special education statute. After a mediation agreement was reached, the agreement was read into the record before a Hearing Officer. The Court held that parents were prevailing parties for purposes of attorney’s fees, basing its decision on the fact that the parties’ agreement was read into the record before a hearing officer.16

This aspect of Parents’ Request for Order therefore also relates to their pursuit of attorney’s fees and related costs. However, an “affirmation” of an informal resolution by the parties does not suffer from the same difficulties as those previously discussed aspects of Parents’ Request for Order , which fall squarely within the province of a federal district court. See part A of this Ruling. It would be the BSEA Hearing Officer, rather than a federal judge, who would be in a position to “affirm” the agreement that resolved the dispute pending before the BSEA and which thereby avoided the necessity of an evidentiary hearing and decision by that Hearing Officer.17

At the outset, I note that an order affirming an informal resolution of a special education dispute is not necessary in order to end a dispute before the BSEA or to otherwise bring closure to a matter pending before the BSEA.

In general, once the parties have resolved their particular dispute regarding special education and related services, the practice of the BSEA and this Hearing Officer has been to expect the moving party to withdraw his/her Request for Hearing. Alternatively, a BSEA Hearing Officer may issue an Order to Show Cause where it appears to the Hearing Officer that the matter is inactive or has been resolved. The Order to Show Cause would typically result in dismissal of the matter if the parties have resolved their differences regarding special education and related services. No further order or action by the Hearing Officer would be necessary to resolve the dispute or bring closure to the matter before the BSEA.

Therefore, I find that an order affirming an informal resolution of a special education dispute is not necessary in order to bring closure to the present dispute before the BSEA. The only remaining issue in dispute relates to attorney’s fees which do not fall within the jurisdiction of the BSEA. However, I will assume (without deciding) for purposes of this Ruling that I would have the discretion to issue an order affirming a settlement as part of my general authority over the special education dispute.18

Parents take the position that this Hearing Officer should use this discretionary authority to affirm what has been agreed to by the parties. Parents point out that in a recent federal district court decision, attorney’s fees were denied because the parties’ agreement was not read into the record or otherwise affirmed by the Hearing Officer. Parents seek to avoid this result. As the Court explained:

In the case at bar, there was an administrative hearing over three days, in which some evidence was presented. However, before the proceeding concluded, the District agreed to their demands, and the case was settled. Unlike Jose [ Luis R. v. Joliet Township H.S. District ] , the agreement was never read into the record in front of the hearing officer. The hearing officer in this case was not asked to render an opinion or affirm a settlement because his services were no longer needed. The parties entered into a private settlement agreement — and plaintiffs therefore are not entitled to “prevailing party” status.19

Parents argue that the Hearing Officer has an affirmative responsibility to provide the requisite administrative order. Their argument, reduced to its basic point, is that where a Hearing Officer has the authority to issue an administrative order, it should be provided so as not to preclude Parents from obtaining the attorney’s fees to which they would otherwise be entitled pursuant to a federal district court proceeding. The requested order could simply acknowledge in a more formal way what the parties have already agreed to informally, and to issue the order, the Hearing Officer need only take into consideration the procedural history of the case and the agreed-upon IEP.

Additionally, the argument is that BSEA Hearing Officers have a general interest and responsibility in not blocking the recovery of attorney’s fees. Attorney’s fees allow for more effective access to the BSEA due process procedures by parents who cannot afford or otherwise obtain legal counsel, thereby leading to a greater likelihood that both parties will be represented. This may lead to a more fair process for resolution of disputes within the BSEA.20

I take no position on Parents’ arguments. Rather, I decline to issue the requested order on the basis of a different line of reasoning.

Where the requested affirming order is not required to bring closure to the dispute before the BSEA but is within the Hearing Officer’s discretion, this Hearing Officer is guided by the general practices of the BSEA. These practices are intended to provide consistent procedures for the parties who appear before the BSEA, and are determined as a general, Bureau-wide matter.

When parties resolve a dispute between themselves, this typically occurs before a Hearing Officer has heard all of the evidence in the case, before he or she has heard or read closing arguments and, in any event, before he or she has rendered a decision on the merits. In this context, the general BSEA practice has been for the Hearing Officer to decline to endorse or otherwise affirm parties’ private settlement agreements. Recently, the BSEA reviewed this general practice in light of the United States Supreme Court’s decision in Buckhannon . The BSEA concluded that it would not further consider a change in this aspect of its practices and procedures.

Consistent with the general practices and procedures of the BSEA, I decline to issue an order affirming the agreement reached by the parties regarding Student’s special education and related services.

For these reasons, Parents’ Request for Order will be denied.

3. Rockport’s Motion to Dismiss .

BSEA 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.21 Similarly, the federal courts have concluded that 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 claim which would entitle him to relief.”22 Therefore, Rockport’s Motion to Dismiss will be allowed if Rockport has demonstrated that Parents can prove no set of facts that would entitle Parents to relief that may be granted by this Hearing Officer.

It is not disputed that the parties have resolved their dispute regarding the special education and related services to be provided Student. There being no further relief to which Parents may be entitled, Rockport’s Motion to Dismiss will be allowed.

Order

For the above-stated reasons, Parents’ Request for Order is DENIED and Rockport’s Motion to Dismiss is ALLOWED.

By the Hearing Officer,

_________________

William Crane

Dated: January 4, 2002

Notice Regarding Dismissal

The Dismissal by the Bureau of Special Education Appeals (BSEA) is a final action and is not subject to further agency review. Because 20 U.S.C. s.1415(i)(2)(A) requires the BSEA decision to be final and subject to no further agency review, the BSEA cannot permit motions to reconsider or to re-open a Bureau decision once it is issued. Any party aggrieved by the BSEA 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 BSEA decision. 20 U.S.C. s.1415(i)(2)(A). Under Massachusetts General Laws, Chapter 30A, Section 14(1), appeal of the final BSEA decision must be filed within 30 days of receipt of the decision.


1

Rockport was represented by Richard Sullivan. Parents were represented by Ruth Bortzfield.


2

20 USC 1415(i)(3)(A)-(G); 34 CFR 300.513.


3

Kathleen H. v. Mass. Dept. of Education , 154 F3d 8 (1 st Cir. 1998).


4

Id.


5

Buckhannon Board and Care Home, Inc. v. West Virginia Dept. of Health and Human Resources , 532 U.S. 598, 121 S.Ct. 1835 (2001). The Buckhannon decision addressed attorney’s fees within the context of a different federal statute. However, a Massachusetts federal court has recently applied the Buckhannon principles to the special education statute. April M. v. West Boylston Public Schools , 35 IDELR 154 (D.Mass. 2001).


6

20 USC 1415(b)(6) and (f)(1). See also 34 CFR 300.507.


7

20 USC 1415(b)(6) and (f)(1); 34 CFR 300.507.


8

E.g., Duneland School Corp ., Indiana State Educational Agency, 31 IDELR 222 (January 19, 2000); Council Rock School District , Pennsylvania State Educational Agency, 29 IDELR 758 (October 30, 1998).


9

See federal Department of Education comments regarding federal special education regulations, Federal Register, vol. 64, no. 48, page 12615 (March 12, 1999) (“States could choose as a matter of State law to permit hearing officers to award attorneys’ fees to parents who are prevailing parties under Part B of the Act . . . .”)


10

MGL c. 71B, s.3.


11

603 CMR 28.08(3) and (5)(c).


12

E.g., In Re: Wareham Public Schools , BSEA # 00-0679 (December 6, 1999).


13

20 USC 1415(l) (“before the filing of a civil action under such laws seeking relief that is also available under this part, the procedures under subsections (f) and (g) shall be exhausted to the same extent as would be required had the action been brought under this part”); Weber ex rel. Weber v. Cranston School Committee , 32 IDELR 141 (1 st Cir. 2000).


14

Compare, e.g., James D. v. School Committee of the Town of Fairhaven , CA No. 98-12131-DPW (D.Mass. 2000) (requiring that case be returned to the administrative hearing officer regarding the issue of monetary damages).


15

E.g., Seattle School District , No. 2000-SE-0127, 34 IDELR 196 (Washington 3/12/01).


16

Jose Luis R. v. Joliet Township H.S. District , 2001 WL 1000734 (N.D.Ill. 2001).


17

In the present dispute, Parents appear to have obtained precisely what they had been seeking through a BSEA hearing and decision – that is, placement at the Landmark School. The placement is reflected in an IEP which has been agreed to by both parties. A BSEA Hearing Officer or federal court may order a school district to provide compensatory services for failure to comply with an IEP that has been agreed to by both parties. Pihl v. Massachusetts Dept. of Educ. , 9 F.3d 184 (1 st Cir. 1993).


18

603 CMR 28.08(3) & (5)(c). Cf. J.S. & M.S., individually, and J.S., a minor by his mother and legal guardian, M.S. v. Ramapo Central School District , 35 IDELR 185 (USDNY 2001) (implying that if requested to do so, the Hearing Officer could have affirmed the informal resolution reached by the parties); Jose Luis R. v. Joliet Township H.S. District , 2001 WL 1000734 (N.D.Ill. 2001) (the Hearing Officer read into the record and arguably thereby “affirmed” the agreement that the parties reached through mediation).


19

J.S. & M.S., individually, and J.S., a minor by his mother and legal guardian, M.S. v. Ramapo Central School District , 35 IDELR 185 (USDNY 2001)


20

Cf. Buckhannon Board and Care Home, Inc. v. West Virginia Dept. of Health and Human Resources , 532 U.S. 598, 121 S.Ct. 1835 (2001) (dissenting opinion of Ginsburg, J.) (Congress enacted the attorney’s fees provisions of s. 1988 “to ensure that nonaffluent plaintiffs would have ‘effective access’ to the Nation’s courts to enforce civil rights laws”).


21

BSEA Rule 16B3; 801 CMR 1.01(7)(g)3.


22

Conley v. Gibson , 355 US 41, 45-46 (1957); Roeder v. Alph Indus ., 814 F.2d 22, 25 (1 st Cir. 1987).