O. v. Bureau Of Special Education Appeals Of Massachusetts, The

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

CIVIL ACTION NO. 17-10473-RGS

KATELIN O., ET AL.,

v.

MASSACHUSETTS BUREAU OF SPECIAL EDUCATION APPEALS, and

THE DENNIS-YARMOUTH REGIONAL SCHOOL DISTRICT

MEMORANDUM AND DECISION ON

CROSS-MOTIONS FOR SUMMARY JUDGMENT

July 23, 2018

STEARNS, D.J.

After graduating from Dennis-Yarmouth High School in June of 2014,

Katelin O. enrolled at Brewster Academy, a private New Hampshire boarding

school, where she spent a year preparing for college. During her years as a

public school pupil, Katelin’s parents expressed repeated concerns to

educators in the Dennis-Yarmouth Regional School District (Dennis-

Yarmouth) that she might suffer from a learning disability. In December of

2012, an independent evaluation confirmed that Katelin presented with

dyslexia. After intensive negotiation, in May of 2013, Katelin’s parents and

Dennis-Yarmouth agreed to a Section 504 plan, which was renewed later that

year and remained in place until May of 2014. Two years later, Katelin’s

parents turned to the Bureau of Special Education Appeals (BSEA) seeking

reimbursement from Dennis-Yarmouth for the costs of sending Katelin to

Brewster during her gap year. A BSEA Hearing Officer eventually

determined that Katelin’s parents’ claim was mostly barred by the statute of

limitations and that Brewster in any event had been an inappropriate choice

for Katelin. The parents then appealed the BSEA’s decision to this court on

Katelin’s behalf, invoking the Individuals with Disabilities Education Act

(IDEA), 20 U.S.C. § 1400 et seq., and Section 504 of the Rehabilitation Act,

29 U.S.C. § 794. Before the court are the parties’ cross-motions for summary

judgment.

BACKGROUND

In its decision, the BSEA described Katelin “as a bright, hard-working,

extremely responsible, kind and personable young woman.” BSEA Decision

# 1607923 (BSEA Dec.) at 3 ¶ 2. From almost the beginning of her public

schooling, Katelin’s parents expressed concerns to school officials that she

was laboring under a learning disability. In 2004, and again in 2007,

Dennis-Yarmouth conducted informal evaluations of Katelin, concluding on

each occasion that she was not eligible for special education services. Id. at

3 ¶ 3. Katelin’s parents eventually arranged for Katelin to undergo an

independent neuropsychological examination followed by a speech and

language evaluation in December of 2012 and January of 2013. Id. at 4 ¶ 10

and Pls.’ Concise Statement of Undisputed Facts at 1 ¶¶ 3-5. The

neuropsychological examiner reported that Katelin “presented with

significant language-based learning disability (dyslexia).” BSEA Dec. at 5 ¶

11. Both of the evaluators recommended special needs accommodations for

Katelin, including daily one-on-one tutoring by a “reading specialist to

address her dyslexia.” Id. at 8-11 ¶¶ 24 & 39.

In March of 2013, Katelin’s parents presented the results of the

evaluations to Dennis-Yarmouth school officials. Id. at 12 ¶ 40. When the

school district requested consent to perform an evaluation of its own,

Katelin’s parents refused. Id. at 12 ¶ 44. On April 10, 2013, Dennis-

Yarmouth held an IDEA “Team” meeting to discuss Katelin’s diagnosis. Id.

at 12 ¶ 45. While accepting the fact that Katelin suffered from dyslexia, the

Team issued a “Finding of No Eligibility” because Katelin “was making

effective progress in her general education courses at [Dennis-Yarmouth],

some of which were honors level.” Id. at 12-13 ¶ 45.

Katelin’s parents disagreed with, but did not formally appeal, the

Team’s conclusion. Instead, on May 8, 2013, they met with the Dennis-

Yarmouth Superintendent and Kenneth Jenks, Katelin’s high school

principal, to press her case. Id. at 13 ¶¶ 49-51. The meeting resulted in the

preparation of a Section 504 Plan for Katelin, which included, among other

accommodations, three hours of one-on-one tutoring each week during the

summer of 2013 by Sarah Hewitt, a nationally-recognized remedial reading

specialist. Id. at 13-14 ¶¶ 51-55. On September 4, 2013, Katelin’s Section 504

Plan, including the weekly tutoring sessions with Hewitt, was renewed and

extended through her senior year of high school. Id. at 14 ¶ 53; ¶ 54.

However, for unexplained reasons, Hewitt’s tutoring came to an end in May

of 2014, several weeks before the June 27, 2014 expiration date of Katelin’s

Section 504 Plan. Id. at 15 ¶ 58. Neither Katelin nor her parents objected.

Id. at 15 ¶ 60.

In the fall of 2013, Katelin won early admission acceptance at two

colleges. Id. at 16 ¶ 63. Apprehensive about her ability to keep pace with her

peers in a college environment, Katelin told her parents in December of 2013

that she wanted to put off college enrollment for a year. Id. at 16 ¶¶ 65-66.

Katelin’s parents agreed and decided to send Katelin to Brewster for a fifth

year of high school. Id. at 17-19 ¶¶ 67-68 & 83. On March 10, 2014, Katelin’s

parents requested assurances from Principal Jenks that Yarmouth-Dennis

would pay for Katelin’s year at Brewster. Jenks, however, rejected the

request two days later, on March 12, 2014. Id. at 17 ¶ 69-70. Katelin turned

18 years of age on May 1, 2014, and received her diploma from Dennis-

Yarmouth on June 27, 2014. Id. at 17-19 ¶¶ 72 & 82. She then attended a

“post-high school year at Brewster,” where she received three instructional

support sessions per week from Brewster teacher Kim Yau (who is not a

certified reading or special education instructor). Id. at 21 ¶ 89, 28. Tuition

and board at Brewster, according to its website, currently amounts to

$62,600 per year.1

Following the refusal by Dennis-Yarmouth to reimburse the costs of

the year at Brewster, Katelin’s parents through an attorney filed two BSEA

Hearing Requests in March and September of 2014, appealing the funding

refusal. Both Requests were dismissed when the attorney failed to respond

to Orders to Show Cause. BSEA Dec. at 17 ¶ 71, 20-21 ¶¶ 88 & 91. On April

4, 2016, Katelin’s parents filed a third BSEA Hearing Request, claiming that

Dennis-Brewster had failed its obligation to provide Katelin a Free and

Appropriate Public Education (FAPE). Id. at 1. On December 22, 2016, the

BSEA, in a written decision, found that while Dennis-Yarmouth had dropped

the “proverbial ball” at “critical times,” Katelin’s remedies were largely

barred on procedural grounds, because her parents had failed to contest the

district’s “no eligibility” finding in 2013 and had failed to prosecute the two

Hearing Requests in 2014. Id. at 22, 26. According to the BSEA, the

1 See Def.’s Response to Pls.’ Concise Statement of Undisputed Facts

at 17 ¶ 39; Tuition and Fees, BREWSTER ACAD.,

https://www.brewsteracademy.org/tuition (visited July 2, 2018).

applicable two-year limitations period had “extinguished” most of Katelin’s

claims, with the exception of the claim for equitable compensation for the

period from May to mid-June of 2014, when Hewitt’s tutoring had been

prematurely ended before the expiration of Katelin’s Section 504 Plan. Id.

at 26-27. The BSEA also held that because Brewster “did not provide the

specialized instruction recommended,” Katelin’s parents were not entitled to

reimbursement from Dennis-Yarmouth for her post-graduate year. Id. at 28.

On March 21, 2017, Katelin and her parents filed this Complaint in the

district court seeking review of the BSEA decision under IDEA and Section

504 of the Rehabilitation Act, together with an award of attorney’s fees.

STANDARD OF REVIEW

While before the court are the parties’ cross-motions for summary

judgment, a point of clarification is in order: In the case of IDEA, “a motion

for summary judgment . . . is simply a vehicle for deciding the relevant issues,

and the non-moving party is not entitled to the usual inferences in its favor.”

Sebastian M. v. King Philip Reg’l Sch. Dist., 685 F.3d 79, 84-85 (1st Cir.

2012). Also, unlike in the usual summary judgment context, an entry of

judgment is not precluded by the presence of disputed issues of material fact.

Id. at 85. Rather, the judicial review of administrative proceedings under

IDEA is conducted under an intermediate standard – “a more critical

appraisal of the agency determination than clear-error review,” but “well

short of complete de novo review.” Lenn v. Portland Sch. Comm., 998 F.2d

1083, 1086-1087 (1st Cir. 1993). A court will thus give a BSEA Hearing

Officer’s decision “due weight” in its “thorough yet deferential” review of the

administrative record. Roland M. v. Concord Sch. Comm., 910 F.2d 983,

989 (1st. Cir 1990).

DISCUSSION

The parties advance arguments and counter-arguments on three main

issues – the statute of limitations, Katelin’s substantive entitlement to IDEA

relief, and relief under Section 504 of the Rehabilitation Act. I will address

each in turn.

Statute of Limitations

Dennis-Yarmouth maintains that IDEA claims brought by Katelin and

her parents predating April 4, 2014, are barred by the IDEA two-year statute

of limitations, and that the BSEA Hearing Officer correctly applied the same

limitations period to the Section 504 claims. See 20 U.S.C. § 1415(f)(3)(C);

BSEA Hearing Rule I.C; BSEA Dec. at 22 n. 16 (“Although Section 504 is

silent as to the applicable statute of limitations, the two-year statute of

limitations applicable to IDEA cases is the statute most closely related to

Section 504.”). Katelin argues error in applying the two-year IDEA statute

of limitations to her, because in her view there is no IDEA statute of

limitations on claims brought by students who have reached their majority.

She also argues that in her case, Section 504 provides for a three-year statute

of limitations that only began to run on May 1, 2014, the day of her eighteenth

birthday. The parentage of these arguments is very dubious. Nothing in the

IDEA, or the related case law, supports Katelin’s assertion that adult

students are exempted from IDEA’s statute of limitations. In relevant part,

IDEA says the following on the subject: “A parent or agency shall request an

impartial due process hearing within 2 years of the date the parent or agency

knew or should have known about the alleged action that forms the basis of

the complaint . . . .” 20 U.S.C. § 1415(f)(3)(C). While subpart D of the section

provides for exceptions to the timeline, these only apply to a child’s parents:

there is no exception listed for “adult students.”2 As the Hearing Officer

persuasively noted, “because the rights accorded to an adult student under

2 The three exceptions specified by the IDEA to the two-year limitations

period are as follows. If a State has an “explicit time limitation” for a hearing

request, it will control. 20 U.S.C. § 1415(f)(3)(C). Massachusetts does not

have such a limitation. Additionally, if the parent failed to request a hearing

because of “specific misrepresentations by the local educational agency that

it had resolved the problem forming the basis of the complaint,” or because

of “the local educational agency’s withholding of information from the parent

that was required under this subchapter to be provided to the parent,” the

two-year limitation does not apply. 20 U.S.C. § 1415(f)(3)(D). Katelin’s

Complaint does not allege facts supporting either the second or the third

exception.

the IDEA mirror those of a parent, it is logical to conclude that the statute of

limitations applies to an adult student in the same way that it applies to a

parent.” BSEA Dec. at 9. Where the idea that Section 504 of the

Rehabilitation Act provides for a three-year statute of limitations applicable

to adult students comes from is a mystery. Courts uniformly hold that it is

the IDEA two-year statute of limitations that applies t0 Section 504 claims.

See, e.g., D.K. v. Abington Sch. Dist., 696 F.3d 233, 244 (3d Cir. 2012)

(Claimants “have the same two years to file an administrative complaint

alleging a violation of the IDEA or § 504 of the Rehabilitation Act.”); Mr. &

Mrs. D v. Southington Bd. Of Educ., 119 F. Supp. 2d 105, 115-116 (D. Conn.

2000) (§ 504 claims are “subject to the same statute of limitation preclusion

applied to the IDEA claims.”).

Relief under the IDEA

This is simply a reprise of the statute of limitations argument. Dennis-

Yarmouth maintains that the BSEA correctly relied on the two-year statute

of limitations in dismissing Katelin’s IDEA claims. See BSEA Dec. at 26

(“Claims and remedies available in 2013 were no longer available in 2016,

[and] all of Parents’/Student’s claims under IDEA were lost.”). Katelin

repeats the argument without further elaboration that the BSEA erred in

refusing to consider Dennis-Yarmouth’s actions prior to April of 2014. Since

the premise is wrong, the argument fails.

Relief under Section 504 of the Rehabilitation Act

Katelin contends that Dennis-Yarmouth violated Section 504 of the

Rehabilitation Act by failing to provide her meaningful access to reasonable

accommodations, and did so with deliberate indifference. Therefore, the

argument goes, she is entitled to compensatory reimbursement for her year

at Brewster. Dennis-Yarmouth, for its part, relies (correctly, I believe) on the

Hearing Officer’s determination that Katelin’s parents’ acceptance without

objection of the implementation of her Section 504 Plan forecloses any

resulting Plan-based claim of inadequate treatment (except for the brief

period when Hewitt’s tutoring ended without explanation or substitution).

BSEA Dec. at 27-28.

Dennis-Yarmouth next argues that even if Katelin’s Section 504 Plan

fell short of FAPE standards, her parents decision to resort to self-help by

enrolling her at Brewster was (as the Hearing Officer yet again found) an

inappropriate remedy for her special needs. See Mr. I ex rel. L.I. v. Maine

Sch. Admin. Dist. No. 55, 480 F.3d 1, 24 (1st Cir. 2007) (Parental removal

from a public school and placement in a private program cannot be

“reasonably calculated to enable the child to receive educational benefit” if

the private program does not offer “some element of special education

services in which the public school placement was deficient.”), quoting

Berger v. Medina City Sch. Dist., 348 F.3d 513, 523 (6th Cir. 2003).

Section 504 of the Rehabilitation Act provides that “no otherwise

qualified individual with a disability in the United States, [. . .] shall, solely

by reason of her or his disability, be excluded from the participation in, be

denied the benefits of, or be subjected to discrimination under any program

or activity receiving federal financial assistance.” 29 U.S.C. § 794(a). The

Act requires federally-funded entities to offer eligible students “meaningful

access” to “reasonable accommodations.” Alexander v. Choate, 469 U.S.

287, 301 (1985); Theriault v. Flynn, 162 F.3d 46, 48 (1st Cir. 1998). To give

content to the requirement of meaningful access, a school district must

prepare in consultation with a child’s parents a FAPE identifying “regular or

special education and related aids and services that [. . .] are designed to meet

individual educational needs of handicapped persons as adequately as the

needs of non-handicapped persons are met.” 34 C.F.R. § 104.33(b)(1). In

addition to establishing that she was denied an adequate FAPE, a plaintiff in

a Section 504 case must also demonstrate that “the denial resulted from a

disability-based animus.” D.B. ex rel. Elizabeth B. v. Esposito, 675 F.3d 26,

40 (1st Cir. 2012); see also Lesley v. Hee Man Chie, 250 F.3d 47, 53 (1st Cir.

2001) (the plaintiff must show that services were denied “solely by reason of

her disability.”).

Dennis-Yarmouth does not dispute that Katelin is a qualified

individual under Section 504. Katelin also appears to agree that her Section

504 specialized supervision under Hewitt’s tutelage was appropriate. See

Pls.’ Mot. for Summ. J. at 12 (“It is clear that she did make growth during her

senior year due to the specialized tutoring she received from Mrs. Hewitt.”).

Therefore, the only relevant timeframe for the assessment of Katelin’s

Section 504 claims is the six-week window between the beginning of May

and mid-June of 2014, when Hewitt’s tutoring stopped. On this issue,

Katelin has alleged no facts suggesting that the cessation of Hewitt’s services

was based on “disability-based animus.” Esposito, 675 F.3d at 40. Katelin’s

only claims of animus, or “deliberate indifference,” are directed at Dennis-

Yarmouth’s refusal to provide her with a FAPE prior to May of 2013. See Pls.’

Mot. for Summ. J. at 9-10 (“Dennis-Yarmouth’s [sic] did not design any

services for Katlin [sic] to include language based specific services prior to

just her senior year.”). 3 Whatever the merits of the argument, it is time-

barred for the reasons previously explained.

3 Katelin’s arguments on this issue in her “Response to Defendant’s

Response to Plaintiff’s Motion” are not persuasive.

Even assuming, arguendo, that Katelin could show that the untimely

cessation of her tutoring sessions arose from animus towards her dyslexia,

the unilateral decision to enroll her at Brewster without input from Dennis-

Yarmouth was an inappropriate choice of remedies. It is true, that a public

school district that cannot provide a disabled student with an adequate FAPE

“may be obliged to subsidize the child in a private program.” C.G. ex rel. A.S.

v. Five Town Cmty. Sch. Dist., 513 F.3d 279, 284 (1st Cir. 2008), citing

Burlington Sch. Comm. v. Mass. Dep’t of Educ., 471 U.S. 359, 370 (1985).

However, a district will not be required to reimburse the expense of a private

education if the private school “does not offer any of the special education

services recommended by the experts.” Mr. I, 480 F.3d at 24. Moreover, a

court entertaining a prayer for equitable relief must consider “all relevant

factors” in order to determine “the appropriate and reasonable level of

reimbursement that should be required.” Florence Cty. Sch. Dist. Four v.

Carter ex rel. Carter, 510 U.S. 7, 16 (1993). If the court finds the private

school costs unreasonable under the circumstances, “total reimbursement

will not be appropriate.” Id. “Parents who unilaterally change their child’s

placement [. . .] without the consent of state or local school officials, do so at

their own financial risk.” Burlington, 471 U.S. at 374-375 (1985).

Katelin’s neuropsychological and language/speech evaluators both

recommended that she receive individualized instruction from a qualified

“reading specialist.” BSEA Dec. at 8-11 ¶¶ 24 & 39. While Hewitt fit that bill

as a nationally certified reading specialist, Ms. Yau, who was untrained and

uncertified in both reading and special education, did not. As such, Brewster

did not provide Katelin with an appropriate (and therefore reimbursable)

special education.4

The BSEA ruled, and Dennis-Yarmouth does not contest, that Katelin

was “entitled to compensatory . . . specialized instruction in reading and

writing by a qualified individual such as Ms. Hewitt” for the period between

May and mid-June of 2014. Id. at 27-28; see Def.’s Opp’n to Pls.’ Mot. for

Summ. J. at 11. The court would prefer that the parties agree on a reasonable

sum to compensate Katelin and her parents for that agreed violation without

further court intervention.

ORDER

For the foregoing reasons, Dennis-Yarmouth’s motion for summary

judgment is ALLOWED as follows. All claims arising from events prior to

4 Additionally, the expanse and expense of the chosen remedy is

disproportionate to Dennis-Yarmouth’s relatively minor FAPE violation

during the brief window between May of 2014 and Katelin’s graduation from

Dennis-Yarmouth on June 27, 2014.

April 4, 2014 are DISMISSED. Katelin’s cross-motion for summary

judgment is ALLOWED with respect to the FAPE violation that occurred

between May and June of 2014. The parties will meet to agree on a suitable

compensatory sum to be paid to Katelin and her parents for that violation

and report to the court within thirty (30) days of the date of this decision on

the results.

SO ORDERED.

/s/ Richard G. Stearns_______

United States District Judge