Town of East Longmeadow v. State Advisory Com'n

• Decision Date: 08 December 1983
• Citation: 17 Mass.App.Ct. 939,457 N.E.2d 636
• Parties: , 15 Ed. Law Rep. 348 TOWN OF EAST LONGMEADOW v. STATE ADVISORY COMMISSION.
• Court: Appeals Court of Massachusetts

Page 636

457 N.E.2d 636

17 Mass.App.Ct. 939, 15 Ed. Law Rep. 348

TOWN OF EAST LONGMEADOW v. STATE ADVISORY COMMISSION.

Appeals Court of Massachusetts Hampden.

Argued Nov. 18, 1983.

Decided Dec. 8, 1983.

Joseph R. Jennings, Springfield, for plaintiff.

Despena F. Billings, Asst. Atty. Gen., for defendant.

Before ARMSTRONG, CUTTER and SMITH, JJ.

RESCRIPT.

J.C., an eleven year old male in 1982, is a severely handicapped child having special educational needs of a type discussed in G.L. c. 71B, inserted by St.1972, c. 766, § 11. East Longmeadow (the town) proposed an Individualized Educational Plan (I.E.P.) for J.C. under which he was to attend a program at Hampshire Educational Collaborative (HEC) for the school year 1981-1982. J.C.'s parents (the parents) rejected this plan and appealed to the Bureau of Special Education Appeals (BSEA) of the Department of Education (the agency). The BSEA, on March 23, 1981, sustained the town's proposed I.E.P. The parents appealed to the State Advisory Commission (SAC), the agency's appellate body. See the procedures discussed in 603 Code Mass.Regs. §§ 402.0 to 411.0 (1979).

The SAC, on June 8, 1982, tentatively affirmed the BSEA's decision. After receiving briefs and after a further review of the record, however, the SAC reversed the BSEA's decision and, on July 13, 1982, remanded the matter to the BSEA for further hearings to determine "in the light of this final decision" (emphasis supplied) what would be "the least restrictive and appropriate program and placement" for J.C. The SAC found that J.C. "did not make sufficient progress at" the HEC and that the I.E.P. proposed by the town was "not adequate and appropriate." It appears from the record that J.C. had been evaluated by, or placed in, a residential school in Scottsdale, Arizona, where (so it is contended) he had made significant progress. The record, however, does not disclose to what extent this experience may have influenced the SAC remand.

Perhaps misled by the SAC's incorrect reference to its "final decision," the town sought in the Superior Court (under G.L. c. 30A, § 14) judicial review of the SAC decision of July 13, 1982. The SAC filed a motion to dismiss the town's proceeding because of the failure to exhaust administrative remedies and the absence of a final administrative decision.

A Superior Court judge correctly dismissed the town's action without prejudice. The SAC's "final decision" was in its very nature not final, no matter what the SAC called it. See Marlborough Hospital v. Commissioner of Public Welfare, 346 Mass. 737, 738, 346 N.E.2d 737 (1964). An administrative order requiring a subordinate administrative body to reconsider its order is neither final nor appealable. See Politano v. Selectmen of Nahant, 12 Mass.App. 738, --- Mass.App.Ct.Adv.Sh. (1981) 2009, 2011, 429 N.E.2d 31. We were told at the arguments that J.C. for the now current school year has been placed in a program which is satisfactory to the town and to the parents, so no...