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Dizio v. Manchester Essex Regional School District

United States District Court, D. Massachusetts

August 12, 2019

CYNTHIA DIZIO and JAMES DIZIO, individually and on behalf of Jane Doe, their minor child, Plaintiffs,


          F. Dennis Saylor, IV United States District Judge.

         This lawsuit arises out of a dispute between a school district and the parents of a disabled child.[1] The complaint alleges a claim arising under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and the Rehabilitation Act, 29 U.S.C. § 794; a claim under 42 U.S.C. § 1983, asserting violations of the Individuals with Disabilities Education Improvement Act of 2004 (“IDEA”), 20 U.S.C. § 1400 et seq.; and various other statutory and common-law claims.

         Plaintiffs Cynthia and James Dizio are the parents of Jane Doe.[2] According to the complaint, Jane is approximately 16 years old and has a variety of disabilities, including attention deficit/hyperactivity disorder (“ADHD”), predominantly inattentive presentation, anxiety disorder, school refusal, depression, slow processing disorder, possible mood disorder, and executive function deficiencies. In substance, plaintiffs allege that defendants Manchester Essex Regional School District (“MERSD”) and the various named school officials refused to provide Jane with a free appropriate public education (“FAPE”), as guaranteed by IDEA.

         As a general matter, the IDEA requires plaintiffs to exhaust administrative remedies before bringing suit. Plaintiffs here did not bring their claims before the Massachusetts Board of Special Education Appeals (“BSEA”), and therefore have not satisfied that requirement. The complaint instead asserts federal and state claims on a variety of theories that essentially seek to avoid a failure-to-exhaust defense.

         Based principally on plaintiffs' failure to exhaust, defendants have moved to dismiss the complaint under Fed.R.Civ.P. 12(b)(1) for lack of subject-matter jurisdiction and Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. For the reasons stated below, the motion will be granted.

         I. Background

         A. Statutory Background

         The IDEA conditions the provision of federal funds to public schools on compliance with a requirement to provide all disabled children with a “free appropriate public education.” See Parent/Prof'l Advocacy League v. City of Springfield, 2019 WL 3729033, at *2 (1st Cir. Aug. 8, 2019) (quoting 20 U.S.C. §1412(a)(1)) (citing Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 295-96 (2006)). “As defined in the Act, a FAPE comprises ‘special education and related services'-both ‘instruction' tailored to meet a child's ‘unique needs' and ‘sufficient supportive services' to permit the child to benefit from that instruction.” Fry v. Napoleon Cmty. Sch., 137 S.Ct. 743, 748-49 (2017) (quoting 20 U.S.C. § 1401(9), (26), (29)); see also Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S.Ct. 988, 994 (2017).

         1. Individualized Education Programs

         The individualized education program (“IEP”) is the IDEA's primary means for assuring the provision of a FAPE to disabled children. “IEPs are ‘comprehensive plan[s]' developed by the child's teachers, school officials, and parents.” Parent/Prof'l Advocacy League, 2019 WL 3729033, at *2 (quoting Endrew F., 137 S.Ct. at 994). At a minimum, “[e]ach IEP must include an assessment of the child's current educational performance, must articulate measurable educational goals, and must specify the nature of the special services that the school will provide.” Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 53 (2005). “[T]he services offered in an IEP amount to a FAPE if they are ‘reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances.'” C.D. by & through M.D. v. Natick Pub. Sch. Dist., 924 F.3d 621, 624-25 (1st Cir. 2019) (quoting Endrew F., 137 S.Ct. at 1001); see also Parent/Prof'l Advocacy League, 2019 WL 3729033, at *3.

         2. IDEA Administrative Procedures

         If a dispute arises between parents and a school district concerning the application of IDEA to a particular child, the statute requires the state to convene an impartial hearing. 20 U.S.C. § 1415(f)(1)(A). “Hearing officers can grant substantive relief, such as reimbursement for private school tuition or an order that a school district must offer the student an appropriate educational program.” Parent/Prof'l Advocacy League, 2019 WL 3729033, at *3 (citing School Comm. of Burlington v. Department of Educ. of Mass., 471 U.S. 359, 370) (1985)). “But relief may only be granted based on a determination of whether the child received a [FAPE].” Id. (quoting 20 U.S.C. § 1415(f)(3)(E)(i)).

         In Massachusetts, those impartial hearings required by the IDEA are conducted by the Bureau of Special Education Appeals. See Mass. Gen. Laws ch. 71B, § 3; 603 C.M.R. 28.08(5); see also Roland M. v. Concord Sch. Comm., 910 F.2d 983, 988 (1st Cir. 1990). Under Massachusetts law, the BSEA has jurisdiction to hear disputes

between and among parents, school districts, private schools and state agencies concerning: (i) any matter relating to the identification, evaluation, education program or educational placement of a child with a disability or the provision of a free and appropriate public education to the child arising under this chapter and regulations promulgated hereunder or under the Individuals with Disabilities Act, 20 U.S.C. § 1400 et seq., and its regulations; or (ii) a student's rights under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and its regulations.

Mass. Gen. Laws. ch. 71B, § 2A(a).

         The BSEA's administrative decision is reviewable in either state or federal court. See 20 U.S.C. § 1415(i)(2)(A), (i)(2)(C)(iii); see also Parent/Prof'l Advocacy League, 2019 WL 3729033, at *3. However, before such an action may be brought, the party seeking review must exhaust all administrative procedures under the IDEA. 20 U.S.C. § 1415(1).

         3. Rehabilitation Act of 1973

         Section 504 of the Rehabilitation Act requires that “no . . . individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in . . . any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a); see also 34 C.F.R. 104.4. As applied to public education, Section 504 requires that disabled children have equal access to educational opportunities that non-disabled children enjoy. Id. In addition, under Section 504, if parents dispute the school district's identification, evaluation, or placement of disabled students, an impartial hearing must be held. 34 C.F.R. 104.36.

         Section 504 is not coextensive with the IDEA. “While the IDEA focuses on the provision of appropriate public education to disabled children, the Rehabilitation Act of 1973 more broadly addresses the provision of state services to disabled individuals.” Mark H. v. Lemahieu, 513 F.3d 922, 929 (9th Cir. 2008). Nevertheless, public schools receiving federal funds must still “provide a free appropriate public education to each qualified handicapped person” under Section 504. Id.

         B. Factual Background

         The facts are set forth as alleged by plaintiffs in the complaint and attached exhibits.

         Cynthia (“Cindy”) and James (“Jim”) Dizio are residents of Essex, Massachusetts, and the parents of Jane Doe. (Compl. ¶¶ 3-5). Jane is approximately 16 years old. (Id. ¶ 21). According to the complaint, she has a variety of disabilities, including ADHD, predominantly inattentive presentation, anxiety disorder, school refusal, depression, slow processing disorder, possible mood disorder, and executive function deficiencies. (Id. ¶ 22). Although she has since changed schools, during most of the relevant period she was a student in MERSD. (Id. ¶ 6).

         1. Elementary School

         Cindy first expressed concerns about Jane's performance in school during the 2009-2010 school year, when Jane was in first grade. (Id. ¶ 24). She told MERSD staff in meetings and by e-mail that she was concerned that Jane was not finishing her schoolwork at the same rate as other students. (Id. ¶¶ 23-24). The school did not test Jane for special-education eligibility that year. (Id.).

         When Jane was in the second, third, and fourth grades, Cindy continued to express concerns about her academic difficulties to MERSD staff. (Id. ¶¶ 26-27, 29). Jane was not, however, evaluated for special-education eligibility. (Id. ¶ 28). According to the complaint, when Jane was in fourth grade, Jennifer Kelly, Psy.D., diagnosed ADHD and recommended that Cindy request testing through the school to get a “504 plan.” (Id.). On January 3, 2013, Cindy requested an evaluation from the school. (Id. ¶ 30).

         On March 25, 2013, Jane was evaluated by Dr. Debra Welling, an elementary-school psychologist. (Id. ¶ 32). The complaint alleges that Dr. Welling noted that Jane's slower processing ability made it difficult for her to keep up in class. (Id.). However, on April 29, 2013, Helen Bryan, the MERSD special-education coordinator, wrote to Cindy to inform her that Jane was not eligible for special-education services. (Id. ¶ 33).

         When Jane was in fifth grade, Cindy continued to express concerns to MERSD staff. (Id. ¶ 34). In January 2014, Jane was evaluated by Dr. Kathy Pennoyer. The complaint alleges that Dr. Pennoyer noted her slow processing speeds and recommended accommodations. (Id. ¶ 35). In March 2014, Kelly requested various accommodations for Jane. (Id. ¶¶ 36-39). School officials advised her that Jane did not qualify. According to the complaint, throughout that school year, Jane continued to struggle with homework, became withdrawn, and stopped attending extracurricular activities. (Id. ¶¶ 38-40).

         2. Middle School

         During the summer between Jane's fifth- and sixth-grade years, Cindy and Jim met with middle-school principal Steve Guditis to discuss their concerns about Jane's transition to middle school. (Id. ¶ 41).

         During Jane's sixth-grade year, Jim and Cindy met with and e-mailed Jane's teachers to ask for help with her struggles in school and with homework. (Id. ¶ 42). Principal Guditis suggested that Jane work with an interventionist. (Id. ¶ 43). According to the complaint, Cindy again requested a plan for Jane and was again denied. (Id.). The school did not evaluate Jane and did not provide special-education services that school year. (Id. ¶ 44).

         In September 2015, Jane's seventh-grade year, Cindy e-mailed MERSD to request that Jane continue working with the interventionist. (Id. ¶ 45). In October, Cindy and Jim hired an advocate and continued to seek an IEP and plan for Jane. (Id. ¶ 46). According to the complaint, Jane's mental health continued to deteriorate, and she fell behind in her classes. (Id.). On October 13, 2015, Cindy requested a psycho-educational reevaluation. (Id. ¶ 47).

         On November 13, 2015, Cindy e-mailed Principal Guditis and Allison Collins to request an emergency meeting concerning Jane's inability to access the curriculum at the school and her deteriorating emotional health. (Id. ¶ 48). According to the complaint, Jane's therapist, Dana Modell, diagnosed “school refusal/school phobia (where students because so anxious and fearful that they cannot go to school)” and wrote a letter to MERSD explaining Jane's emotional decline and need for support. (Id.). The emergency meeting was held on November 19, and all of Jane's teachers except for one waived her outstanding assignments. (Id.).

         a. Child Requiring Assistance Case

         According to the complaint, Jane missed five days of school during the first week of December 2015, two days due to a stomachache, and three because she was “terrified to go to school” and therefore “too ...

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