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Katelin O. v. Massachusetts Bureau of Special Education Appeals

United States District Court, D. Massachusetts

July 20, 2018




         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.


         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 ¶ 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 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.


         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).


         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 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 ...

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