Kelly K. v. Town of Framingham

• Decision Date: 16 May 1994
• Docket Number: No. 93-P-1115,93-P-1115
• Citation: 36 Mass.App.Ct. 483,633 N.E.2d 414
• Parties: , 91 Ed. Law Rep. 274, 7 A.D.D. 699 KELLY K. 1 & others 2 v. TOWN OF FRAMINGHAM & others. 3
• Court: Appeals Court of Massachusetts

Page 414

633 N.E.2d 414

36 Mass.App.Ct. 483, 91 Ed. Law Rep. 274,

7 A.D.D. 699

KELLY K. ¹ & others ² v. TOWN OF FRAMINGHAM & others. ³

No. 93-P-1115.

Appeals Court of Massachusetts Middlesex.

Argued March 10, 1994.

Decided May 16, 1994.

Dennis T. Murakami, for plaintiffs.

Philip B. Benjamin, Sp. Asst. Town Counsel, for defendants.

Before ARMSTRONG, FINE and PORADA, JJ.

FINE, Justice.

Kelly K. and her parents brought this tort action against the town of Framingham and nine individual employees of the Framingham public schools. Alleging negligence, intentional infliction of emotional distress, intentional interference with an advantageous relationship, and negligent misrepresentation, the plaintiffs claim that the defendants performed insufficient and inadequate evaluations of Kelly, a child with learning disabilities, from the time she entered the Framingham public schools and, as a result, that they failed to provide her with an education suitable to a child with her special needs. The defendants moved to dismiss the complaint or, in the alternative, for summary judgment, and the judge allowed the motion as to all the claims and all the defendants. He ruled that all of the plaintiffs' claims were barred by their failure to exhaust their administrative remedies, and he also gave additional reasons for his rulings on each of the claims. As we agree with the judge that, in the circumstances, the plaintiffs' claims are barred by their failure to avail themselves of their administrative remedies, we need not discuss the other reasons given by the judge for his decision.

The rights of all children with disabilities are provided for in an extensive and detailed legislative and regulatory scheme, both Federal and State. The Individuals with Disabilities Education Act (IDEA), ⁴ 20 U.S.C. § 1400 et seq. (Supp.1992), guarantees all children with disabilities a free appropriate public education; it provides funding for States that meet certain conditions; and it sets forth procedural requirements to protect the rights of children with disabilities, including specific learning disabilities, commencing on the local level with professional evaluations, participation of parents in the development of an individualized educational plan (IEP), and including the right on the part of the parents to a due process hearing to challenge any such plan, and, where that proves unsatisfactory, to judicial review. See Honig v. Doe, 484 U.S. 305, 309-312, 108 S.Ct. 592, 596-598, 98 L.Ed.2d 686 (1988). ⁵ Comprehensive special education legislation, G.L. c. 71B, was first enacted in Massachusetts as Chapter 766 of the Acts of 1972, and extensive regulations have been in effect at all relevant times. 603 Code Mass.Regs. § 28.100 et seq. In brief, the Massachusetts statute and regulations provide: at the local level, children suspected of being in need of special education may be referred for an evaluation by a team of professionals. If there is a finding of a need for special education, an IEP is then prepared for the child's education in the least restrictive environment possible; the child must be educated according to the IEP or, if the parents reject a proposed IEP and efforts to reach a resolution fail, they are entitled to a hearing, held in accordance with G.L. c. 30A, before the Department of Education's bureau of special education appeals, with the right to judicial review in a State or Federal court. The rights the plaintiffs claim were impeded were created by these State and Federal statutes.

Kelly was a student in the Framingham public schools from 1978, when she entered a preschool program, until she left in 1988 to attend the Forman School, a private residential high school in Connecticut. Through grade six she received evaluations and, pursuant to IEPs, special education services. In August of 1986, Kelly's parents wrote to an official in the Framingham public schools that they "ha[d] been very pleased with the job that the schools ha[d] done for [Kelly]," and, because special education services would no longer be needed, they asked that all of her special education records be destroyed. Kelly attended a regular school program for grades seven and eight. In September of 1988, on their own initiative and without consulting Framingham school personnel, the parents placed Kelly K. in the Forman school, where we assume she remained until her graduation in 1992. Kelly's parents had her evaluated privately at various times while in the Framingham school system and also while in high school, and they shared the results with Framingham personnel. The plaintiffs claim dissatisfaction with both the evaluations performed by school personnel and the services provided over the course of Kelly's schooling.

At some point after Kelly was enrolled in high school, her parents sought to have Framingham reimburse them for the tuition, and, represented by counsel, they brought the matter before the bureau of special education appeals in August of 1990. After a prehearing conference, on October 15, 1990, Framingham school personnel prepared an IEP which did not provide for Kelly's attendance at the Forman school. The parents challenged the IEP, and a hearing before a bureau of special education appeals hearing officer was scheduled for November 1, 1990. However, by letters dated October 17, 1990, and November 8, 1990, the plaintiffs withdrew from the appeals process, and they filed this action in March of 1992.

Ordinarily, a party to a controversy within the exclusive jurisdiction of an administrative agency must exhaust his administrative remedies before initiating court action. See J. & J. Enterprises, Inc. v. Martignetti, 369 Mass. 535, 539-540, 341 N.E.2d 645 (1976); Murphy v. Administrator of Div. of Personnel Admn., 377 Mass. 217, 220, 386 N.E.2d 211 (1979); Massachusetts Respiratory Hosp. v. Department of Pub. Welfare, 414 Mass. 330, 337, 607 N.E.2d 1018 (1993). The principle applies whether the party failed to resort to the administrative process or administrative proceedings are pending at the time of suit. "This doctrine enables the agency to develop a factual record, to apply its expertise to the problem, to exercise its discretion, and to correct its own mistakes, and is credited with promoting accuracy, efficiency, agency autonomy, and judicial economy." Christopher W. v. Portsmouth Sch. Comm., 877 F.2d 1089, 1094 (1st Cir.1989). Holding that, with limited exceptions, the administrative remedies provided are exclusive, courts have applied the doctrine to claims of deprivation of rights under the special education statutes. See Smith v. Robinson, 468 U.S. 992, 1012-1013, 104 S.Ct. 3457, 3468-69, 82 L.Ed.2d 746 (1984); Christopher W. v. Portsmouth Sch. Comm., 877 F.2d at 1099; Stock v. Massachusetts Hosp. Sch., 392 Mass. 205, 213 n. 14, 467 N.E.2d 448 (1984); Pierce v. Board of Educ. of Chicago, 69 Ill.2d 89, 94, 12 Ill.Dec. 731, 370 N.E.2d 535 (1977); Hoffman v. Board of Educ., 49 N.Y.2d 121, 127, 424 N.Y.S.2d 376, 400 N.E.2d 317 (1979). ⁶ Following the reasoning in those cases, we hold that, ordinarily, the statutory procedure is the exclusive method of obtaining or challenging an educational program for a child with disabilities.

None of the recognized exceptions to the exhaustion doctrine which have been set forth in the context of complaints about special education, see Christopher W. v. Portsmouth Sch. Comm., 877 F.2d at 1095-1098, is applicable here. Where the question raised is one of law, not one of fact within the agency's particular expertise, exhaustion is not required. See Stock v. Massachusetts Hosp. Sch., 392 Mass. at 213, 467 N.E.2d 448. The issues raised by the plaintiffs, however, required factual determinations about the nature of Kelly's disability and appropriate educational programs as well as application of the agency's expertise to those facts. The exhaustion doctrine also may not apply where the plaintiff is being threatened with severe harm. At the time the plaintiffs resorted to the court action, however, Kelly was close to graduation from the private school her parents had chosen. Additionally, the plaintiffs have not suggested that asking for a hearing at any time over the course of Kelly's schooling, or pursuing the process they had begun in ...