School Committee of Franklin v. Commissioner of Educ.

• Decision Date: 31 May 1984
• Citation: 17 Mass.App.Ct. 683,462 N.E.2d 338
• Parties: , 17 Ed. Law Rep. 221 SCHOOL COMMITTEE OF FRANKLIN v. COMMISSIONER OF EDUCATION et al. 1 (and a companion case 2 ).
• Court: Appeals Court of Massachusetts

Page 338

462 N.E.2d 338

17 Mass.App.Ct. 683, 17 Ed. Law Rep. 221

SCHOOL COMMITTEE OF FRANKLIN v. COMMISSIONER OF EDUCATION et al. ¹

(and a companion case ²).

Appeals Court of Massachusetts, Norfolk and Suffolk.

Argued Nov. 10, 1982.

Decided April 5, 1984.

Further Appellate Review Granted May 31, 1984.

Paul G. Murphy, Boston, for the parents.

Judith S. Yogman, Asst. Atty. Gen. (Charles E. Walker, Jr., Asst. Atty. Gen., with her), for Commissioner of Education.

C. Peter R. Gossels, Boston, for School Committee of Franklin.

Before ARMSTRONG, CUTTER and SMITH, JJ.

ARMSTRONG, Justice.

These are appeals from judgments in two actions: first, an action brought by the school committee of Franklin challenging a decision by which the Department of Education (department) determined that Franklin was obliged to pay for the education of a special needs child at a private school, Leland Hall, during the 1974-75 and 1975-76 school years; and, second, an action brought by the parents of the special needs child against the school committee for reimbursement of amounts paid by them for the private school education. The actions were consolidated for trial. The judge, over the objections of the department and the parents, permitted the school committee to introduce evidence in addition to the record of proceedings before the department and determined on the basis of that evidence that "Leland Hall was at no time an appropriate alternative private placement for the student in question." Judgments were entered dismissing the parents' action for reimbursement and declaring (in the school committee's action) that the town was not responsible for bills incurred at Leland Hall. The cases are before us on appeals by the department and the parents.

The alleged liability has its source in the "Chapter 766" program (G.L. c. 71B, as amended, originally inserted by St.1972, c. 766, § 11), which became effective September 1, 1974. The child, Kevin, had attended the Franklin public schools through third grade; but in the summer of 1974, at the suggestion of a learning disabilities specialist who had tutored Kevin in the Franklin schools, his parents enrolled him in a remedial program at Leland Hall. The parents continued him there as a full-time student in September, and he remained there through the 1974-75, 1975-76, and 1976-77 school years. In 1977-78 the parents transferred him to another private day school.

In June, 1974, in anticipation of the effective date of the Chapter 766 program, the Franklin school staff prepared individualized education plans for Kevin and other students who had previously received special education services. The process was non-participatory; when Kevin's parents were shown the plan in August, they sought reevaluation. They met with school officials in September and requested that formulation of a new plan be delayed until certain evaluation reports were forwarded from Leland Hall. There were delays in forwarding the reports. The last were finally received on January 27, 1975. A formal evaluation conference took place on February 13; the resulting plan was sent to the parents March 5, 1975. The plan called for Kevin to spend forty percent of his time in the regular program and sixty percent in a special education resource room in the Franklin school.

The parents rejected the plan on April 15 and again on May 14, after a period for informal resolution of differences allowed by a departmental regulation (see now 603 Code Mass.Regs. § 400.0 [1979] ), and they invoked the jurisdiction of the department under G.L. c. 71B, § 3. A hearing was held on November 20, 1975. Some time in April, 1976, the parties received notice of the hearing officer's findings and recommendations. These were, in essence, that Kevin's relatively mild learning disability did not call for a program so restrictive ³ as that proposed by the school committee or that offered at Leland Hall and that the school committee should formulate a new plan for Kevin which would keep him in the regular education program for a greater part of the day, supplemented by personal tutorial instruction with reading aid and perceptual training. The hearing officer also stated, however, that "until Franklin designs an appropriate plan for Kevin ... he may remain at Leland Hall at Franklin's expense."

On December 6, 1976, the school committee filed its complaint in the Superior Court, seeking to have the hearing officer's decision quashed on a variety of procedural and substantive grounds and seeking declaratory relief regarding the authority of the department to order school committees to reimburse parents for private educational placements not directed by public officers. ⁴ The department moved to dismiss the complaint on the ground that the proceeding before the department was adjudicatory and that, in accordance with G.L. c. 30A, § 14, any complaint seeking judicial review had to be filed within thirty days. The motion to dismiss was allowed, but the school committee was given leave to file an amended complaint. The amended complaint was not different in substance from the original complaint, and both the department and the parents moved for its dismissal. That motion was denied on March 31, 1977.

On April 21, 1977, the department filed a motion asking that the case be remanded to it for the issuance of a substitute decision, to include, inter alia, "[f]indings consistent with the [d]epartment['s] ... interpretation of issues regarding retroactive payment for private placements." The motion was allowed, and a substitute decision was rendered December 4, 1978, by a different hearing officer, based on the transcript of testimony before the first hearing officer and documents introduced in that hearing. The substitute decision differed from the original decision in several substantial respects. For present purposes, we note these differences: (1) that it focused exclusively on determining the liability of the school committee to reimburse the parents for the 1974-75 school year, rather than on the formulation of a prospective plan for Kevin's education; (2) that it stated that Leland Hall "was appropriate for Kevin," explaining, however, that that statement represented only a determination that Leland Hall was capable of offering the types of programs needed by Kevin and did not represent a determination that the Leland Hall plan was adopted as the least restrictive placement alternative called for by the departmental regulations (see note 3); ⁵ and (3) that it ordered the school committee to reimburse the parents for Kevin's private school expenses for the entire 1974-75 school year. (The earlier decision had arguably ordered the school committee to assume financial responsibility only prospectively from the date of decision.)

After the substitute decision of December 4, 1978, was returned to court, the parents filed a motion for a second remand "for the purpose of allowing the hearing officer to determine whether the liability established under his substitute decision shall be binding not only for the years 1974-75, but for continuing years through the 1978 school year." That motion was allowed on April 23, 1979, and the matter came again before the same hearing officer who had rendered the previous remand decision. This time an evidentiary hearing was had, apparently confined to the question of cooperation between the parents and the school committee after the department's original decision in March of 1975. The second remand decision (July, 1979) left the first remand decision undisturbed (as to the school committee's liability for the 1974-75 school year); determined that the school committee was liable to the parents (based on a finding that the parents had been cooperative with the school committee until April, 1976) for the Leland Hall expenses in the school year 1975-76; and determined that the school committee was not liable to the parents (based on a finding of non-cooperation after April, 1976) for the two succeeding school years.

The parents did not seek further review of that decision, nor did they seek reimbursement for the later school years in their separate action for reimbursement. Consequently, by the time the consolidated cases came on in the Superior Court for hearing on the merits, the sole issue was the liability of Franklin to reimburse Kevin's parents for their Leland Hall expenses for the 1974-75 and 1975-76 school years: a sum amounting to roughly $7,200.

Two weeks before the hearing, on July 15, 1980, the school committee filed a motion that the court not confine the hearing to the agency record, in keeping with the usual practice (see G.L. c. 30A, § 14 ), but instead, in accordance with the provisions of 20 U.S.C. § 1415(e)(2) (1976), receive additional evidence "concerning the management, staff, population, facilities, and curriculum offered by the Leland Hall School during the 1974-1976 school years." Over the opposition of the department and the parents, the judge allowed the motion. This ruling was to prove decisive to the judge's disposition of the case, as he found, on the basis of the evidence so received, that Leland Hall lacked direction and form, that its teaching staff was inadequate, and that its pretensions to capabilities in dealing with learning-handicapped children were greatly overblown.

In these appeals from the ensuing judgments, all parties have assumed that the proceedings before the department were "adjudicatory" within the meaning of G.L. c. 30A, § 1, and that the school committee, as an aggrieved party, could take an appeal from the departmental decision to the Superior Court under the provisions of G.L. c. 30A, § 14. Three cases have intimated as much, although without discussion of the point: Amherst-Pelham Regional Sch. Comm. v. Department of Educ., 376 Mass. 480, 495, 498, 381 N.E.2d 922 (1978); School Comm. of Brookline v. Bureau of Special Educ. Appeals, 389 Mass. 705, 714,...