COMMONWEALTH OF MASSACHUSETTS
COMMONWEALTH OF MASSACHUSETTS
DIVISION OF ADMINISTRATIVE LAW APPEALS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Student
&. BSEA #2009921
Littleton Public Schools
RULING ON PARENTS’ MOTION FOR SUMMARY JUDGMENT AND SCHOOL’S MOTION TO DISMISS
In the instant case, Parents requested an Independent Educational Evaluation (IEE) for Student in or about December 2019. It is undisputed that the Littleton Public Schools (Littleton or School) neither agreed to fund the evaluation nor filed a hearing request to defend its own evaluation within the five-day period required by federal and state regulations.
On June 4, 2020, Parents filed a hearing request with the BSEA seeking an order directing Littleton to fund an IEE for Student. On June 24, 2020, during a conference call with the hearing officer, Littleton agreed to fund an IEE to be conducted by duly licensed and credentialed provider(s) at applicable state rates. Littleton confirmed this agreement in writing via email correspondence from counsel for Littleton on June 30, 2020 at 12:49 PM. The Director of Pupil Services reiterated this agreement on July 1, 2020 at 7:44 PM. Both emails requested that Parents contact the School to discuss the areas to be addressed by the IEE and Parents’ suggested providers so that Littleton could contract with evaluator(s).
On June 30, 2020 at 5:46 PM, after Littleton’s counsel had sent Parents the above-referenced confirmation of the agreement to fund the IEE, Parents filed a Motion for Summary Judgment asserting that based on the undisputed material facts in this matter, Littleton had “forfeited their right to deny a publicly funded IEE and therefore must act immediately to fund the requested IEE.” On July 1, 2020, Littleton countered with an Opposition to a Motion for Summary Judgment and Motion to Dismiss the matter as moot, based on the district having agreed to provide Parents with all of the relief they were seeking from the BSEA.
Parents filed an Opposition to the Motion to Dismiss on July 2, 2020, Parents asserted, first, that “a live conflict still exists,”[1] because “no formal attempt has been made to set up evaluation by the school district and parents cannot consider accepting…” ; because Parents “have no guarantee that the district would fund an IEE without legally being compelled to do so, as they have not done so to date.,” and that a live controversy exists “based on the district’s violations of federal and state statutes and timelines, not on whether district shows intent of offering resolution.” Secondly, Parents argued that dismissal would cause “compounded and catastrophic delay in [Student’s] development” and would mean that the district would “no longer [be] compel[led] to offer publicly funded IEE…” Finally, Parents questioned the veracity of Littleton’s statements of intent to provide the IEE.
For reasons discussed below, Parents’ Motion for Summary Judgment is DENIED as moot, and Parents’ hearing request is DISMISSED.
DISCUSSION
The authority and jurisdiction of the BSEA extends only to current, live disputes between parties over “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…” 20 USC §1415(b)(6)(A); 34 CFR §300.507(a)(1); MGL c. 71B, §2A(i); 603 CMR 28.08(3). Neither courts nor the BSEA may adjudicate matters where there is no live controversy between the parties such that the case becomes moot. See, e.g., Thomas R.W. ex rel Pamela R. v. Mass. Dept. of Education, 130 F. 3d 477 (1st Cir. 1997), and cases cited therein; In Re Middleboro Public Schools, Ruling on Motion for Summary Judgment, BSEA No. 1908178 (Berman, May 2019).
In the instant case, the “live controversy between the parties” ended, ie., became moot, when, on June 24, June 30, and July 1, 2020, Littleton offered to fund an IEE by duly credentialed and licensed provider(s) at pertinent state rates. This offer constitutes all of the relief that Parents sought in their hearing request. There is no other or greater relief that a hearing officer could award Parents after a hearing.
Parents claim that a “live controversy” still exists because Littleton allegedly has not yet “made a formal attempt” to set up the evaluation does not establish a dispute of material fact, since all that is required to resolve this case is Littleton’s commitment to provide the IEE. Additionally, the documentary record shows that since the conference call of June 24, 2020, Littleton invited Parents at least twice to work with the district on the logistics of setting up the IEE. Specifically, Littleton asked Parents to discuss with School personnel the types of independent assessments they seek and providers in whom they are interested. Without such information, the School cannot contract with a provider or providers so that it can fulfill its agreement to pay for the IEE.
Further, Parents’ argument that Littleton’s alleged violations of federal and state law constitute a controversy over which the BSEA has jurisdiction regardless of the School’s offer to resolve this matter is not persuasive. The BSEA has no authority to assert jurisdiction over this matter now that the School has offered Parents all the relief that they originally sought. Moreover, for the BSEA to do so would be contrary to the strong preference of Congress for rapid, informal and collaborative resolution of IDEA-related disputes. See, e.g., 20 USC §§1415(c)(2); (e); (f)(1)(B); 34 CFR §§300.506, 510; In Re: Israel v. Monson Public Schools, BSEA No. 10-5064 (Byrne, 2010 ): In Re: Duxbury Public Schools, Ruling on Motion for Protective Order, BSEA No. 1803977 (Figueroa, 2018). Finally, Parents’ lack of trust that Littleton will fulfill the terms of its agreement in the future does not constitute a live, current controversy that would support a grant of summary judgment for Parents.
To summarize, the district’s offer to fund an IEE by qualified provider(s), at state rates, eliminated the controversy between the parties. As such the BSEA lacks jurisdiction to decide this matter and a grant of summary judgment in favor of Parents is inappropriate.
With respect to the School’s Motion to Dismiss, Rule 1.01 (g)(3) of the Standard Adjudicatory Rules of Practice and Procedure allows a hearing officer to dismiss a case at any time for a variety of reasons, including, among other things, “lack of jurisdiction to decide the matter…” 801 CMR 1.01(g)(3). Under the circumstances of this case, dismissal is appropriate. Such dismissal would not preclude Parents from seeking relief at the BSEA or through the Problem Resolution System (PRS) of the Massachusetts Department of Elementary and Secondary Education (DESE) in the unlikely event that Littleton fails, in the future, to fulfill the terms of its agreement.
CONCLUSION AND ORDER
For the reasons stated above, the Parents’ Motion for Summary Judgment is DENIED and the Littleton Public Schools’ Motion to Dismiss is GRANTED.
By the Hearing Officer,
/s/Sara Berman
Sara Berman
Dated: July 6, 2020
Footnotes
[1] I construe this statement by Parents, who are pro se, to mean that the alleged legal violations by Littleton constitute an actionable controversy even though the facts are undisputed and full relief has been offered.