RICHARD STOCK [Note 1] vs. MASSACHUSETTS HOSPITAL SCHOOL & OTHERS. [Note 2]

NOLAN, J. The plaintiff, Richard Stock, has appealed the entry of summary judgment in favor of the defendants in the Superior Court. We allowed Stock's motion for direct appellate review. We hold that allowance of the defendants' motion for summary judgment was error, and we remand the case to the Superior Court.

1. Factual background and prior proceedings. Richard Stock, age 21, suffers from multiple cognitive and motor disabilities which are the result of a brain tumor and chemotherapy-radiation treatments received for that tumor at the age of ten. He also manifests emotional and behavioral difficulties which are concomitant with his physical condition. For the most part, he is confined to a wheelchair. At times he has demonstrated academic abilities ranging from the fourth through the ninth grade level. At the time he was awarded a high school diploma, a psychologist's evaluation indicated that his abilities were consistently below the norm for his age group and were consonant with brain damage.

At the age of fourteen, Stock entered the Massachusetts Hospital School, where he received special education services at the Brayton High School. [Note 3] In the fall of 1980, Stock's teachers

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met to formulate his Individualized Educational Plan (IEP) for the 1980-81 school year. [Note 4] The teachers intended that Stock be graduated at the end of the academic year. Neither Stock nor his parents were invited to this meeting. In the early part of the winter of 1981, Stock signed the IEP. The IEP does not show a parental signature. [Note 5] The IEP does not mention graduation.

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At no time were his parents provided formal, written notice of their right to challenge the IEP or of the procedural avenues open to them to make that challenge. [Note 6] Neither were they told that graduation would terminate their son's eligibility for special education services. [Note 7] In June, 1981, Stock was presented with a high school diploma. His eligibility for special education services was thereby terminated.

In the months following graduation, Stock remained at the hospital school. Although the record is unclear as to whether additional special education services were offered to him, or offered and refused, in the time between graduation and the commencement of this action, there is no question that Stock has received no further special education services since his graduation. He has failed to adapt either to sheltered workshop

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or to independent living settings. At the time appellate briefs were filed, he was hospitalized in a chronic care unit.

In December, 1981, Stock's parents sought legal counsel. In the proceeding below, Stock challenged the award of his diploma on procedural and substantive grounds, alleging violations of both State and Federal law. The defendants asserted that Stock had failed to exhaust administrative remedies. On March 29, 1983, a judge of the Superior Court issued a memorandum and order on cross-motions for summary judgment. In his memorandum, the judge ruled that Stock could not acquire the academic skills necessary for a regular high school education before reaching age twenty-two, the age at which special education entitlements terminate. The judge then concluded that Stock had not met the "primary jurisdiction" requirement of exhaustion of administrative remedies, ordered the entry of summary judgment in favor of all defendants, and dismissed Stock's complaint.

After judgment, Stock's counsel wrote to the Bureau of Special Education Appeals urging consideration of his client's appeal. The assistant director of the Bureau of Special Education Appeals took the position that, because Stock had received a high school diploma, the bureau no longer had jurisdiction of his case.

On appeal, Stock raises the following issues: (1) whether the defendants' failure to provide notice and procedural protections before terminating special education services violated his rights under State and Federal law; (2) whether presentation of a high school diploma to Stock in the absence of his attaining sufficient skills to warrant such presentation violated his rights under State and Federal law; and (3) whether the Superior Court judge erred in his conclusion that court proceedings were inappropriate in the absence of exhaustion of administrative remedies. Stock requests a determination from this court that he had not acquired sufficient skills to graduate from high school without his express consent. He requests relief in the form of an order rescinding his diploma and directing the department to arrange for and fund appropriate special education services for him. Further, Stock urges this court to establish

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procedural and substantive standards for graduation of special needs students.

The defendants argue that the judgment of the Superior Court should be affirmed on the issue of exhaustion of administrative remedies, and further urge that Stock's complaint be dismissed for failure to join a necessary party under Mass. R. Civ. P. 19 (a), 365 Mass. 765 (1974), and for failure to state a claim for which relief can be granted.

For the reasons set forth below, we agree that Stock's graduation was procedurally and substantively defective and that exhaustion of administrative remedies would have been futile in his case. However, because it is inappropriate for this court to arrogate to itself the powers delegated to the department, we decline to establish substantive educational standards.

2. Procedural safeguards. The focus of Stock's argument is that the decision to graduate a child with special education needs is a "change in placement," 20 U.S.C. Section 1415 (b) (1) (C) (i) (1982), triggering the mandatory procedural safeguards of EAHCA, described in 20 U.S.C. Section 1415 (1982). The plaintiff cites no judicial discussion of this issue, nor have we found any. [Note 8] It seems obvious, however, that graduation, because it will cause the termination of a student's participation in special education programs, can hardly be characterized as anything other than a change in placement. This view accords with Federal law, which requires that States qualifying for Federal assistance provide special needs children with "a free appropriate public education." 20 U.S.C. Section 1412 (1) (1982). It also accords

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with the law of this Commonwealth, which mandates that the department administer special education programs so as "to assure the maximum possible development of a child with special needs." G. L. c. 71B, Section 2, as amended by St. 1978, c. 552, Section 19. No change in placement seems quite so serious nor as worthy of parental involvement and procedural protections as the termination of placement in special education programs. Under the Federal scheme, a change in placement requires formal, written notice of the decision to graduate a child, as well as notice of a parent's right to protest that decision, a description of the administrative remedies and procedures to be followed, and a description of any alternative services which may be available. 20 U.S.C. Section 1415 (1982). To ensure conformity with Federal policy, the State must adhere to these notice and procedural requirements. 20 U.S.C. Sections 1412 (5) (A), 1415 (a), 1416 (1982). This change requires significant parental involvement in the decision-making process, as this is contemplated by 20 U.S.C. Section 1414 (a) (C) (iii) (1982), and by G. L. c. 71B, Section 3. It is not enough, contrary to the defendants' argument, that Stock's parents received actual notice of the graduation or that they participated to a limited extent in the transitional planning surrounding the graduation. From all appearances, the Stocks received actual notice of a fait accompli, without any notice that they might challenge the decision. [Note 9] It is difficult to find justification for permitting a young man with Stock's handicaps to pass through and out of the special education system by virtue of his signature on an IEP -- which did not even mention the graduation decision -- without some evidence that he or his parents were aware of the consequences of doing so and the alternatives available to them. [Note 10] We note that

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the conduct of which Stock complains was in direct violation of the department's special education regulations. [Note 11]

Failure to provide to Stock's parents formal, written notice concerning the graduation decision, failure to provide such notice regarding their rights to involvement in that decision, and failure to notify them as to rights to a hearing and administrative review, violate State and Federal statutory law. As a result, we need not reach the issues raised concerning violation of the due process clause of the Fourteenth Amendment to the United States Constitution, nor claims asserted under 42 U.S.C. Section 1983 (1976 & Supp. 1981). [Note 12]

3. Primary jurisdiction. It is well established that resort to the administrative process is generally a prerequisite to invoking

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the jurisdiction of a court. East Chop Tennis Club v. Massachusetts Commission Against Discrimination, 364 Mass. 444 (1973). However, the doctrine of primary jurisdiction [Note 13] is limited by several exceptions. Exhaustion is not required where it would prove futile, or where only questions of law are presented to the court, or where irreparable harm would result if judicial action were delayed by the implementation of the administrative process. See Ezratty v. Puerto Rico, 648 F.2d 770, 774-775 n.5 (1st Cir. 1981) (futility); School Comm. of Greenfield v. Greenfield Educ. Ass'n, 385 Mass. 70, 75-76 (1982) (questions of law); Murphy v. Administrator of the Div. of Personnel Admin., 377 Mass. 217, 220-222 (1979) (questions of law). Here, not only were questions of law involved in construing graduation as a "change in placement," but the record reveals that invocation of the administrative procedures was virtually impossible, and thus, of course, futile. [Note 14]

4. Standards. Stock urges this court to set standards for the attainment of a "high school diploma or its equivalent," the achievement of which terminates eligibility for special education services under G. L. c. 71B, Sections 1 & 3. This we cannot do. Academic standards are matters peculiarly within the expertise of the department and of local educational authorities, and are at present regulated. 603 Code Mass. Regs. Section 40.00 (1979). It is sufficient that the trial judge found, and the record supports, that Stock would be incapable of attaining, by age twenty-two, sufficient learning and skills to merit the award of a high school diploma under existing standards. From this it follows inescapably that conferring a diploma upon the plaintiff at the age of eighteen was substantively inappropriate.

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5. Failure to join a necessary party. The defendants argue that this action must be dismissed under Mass. R. Civ. P. 19 (a), for failure to join an indispensable party, the King Philip Regional School District, the local educational agency for the district where Richard Stock's parents reside. There exists some question as to which local agency will be responsible, both academically and financially, in assisting Stock. [Note 15] In view of our decision to order the case remanded to the department the question whether a local agency will or which local agency need be joined will be best resolved by the department itself, in construing its own regulations. Additionally, the defendants' assertion of error as to failure to join a local agency is not sufficient to require dismissal of this action either under Mass. R. Civ. P. 19 (a), or Mass. R. Civ. P. 21, 365 Mass. 767 (1974).

6. Relief to be granted. In view of our determination that the defendants' failure to adhere to procedural safeguards rendered exhaustion of administrative remedies futile, the trial judge's entry of summary judgment in favor of the defendants must be reversed. Further, because the award of a diploma was both procedurally and substantively deficient, the diploma must be rescinded. This case is remanded to the Superior Court with directions that it order the department to take jurisdiction and to hold a hearing on the matter of providing special education services to Stock. Should it determine that further services are appropriate, the department shall take into account the period of about three years which has elapsed since the initial graduation in June, 1981. This is to be added to Stock's period of eligibility for special education services. Thus, he may receive such services beyond the normal termination age of twenty-two, see G. L. c. 71B, Section 1, although the department

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is not necessarily precluded from terminating Stock's special education services on some basis other than age. Finally, the department may consider plans for services to which Stock may be entitled under G. L. c. 71B, Sections 12A-12C, inserted by St. 1983, c. 688. The Superior Court shall retain jurisdiction of the case.

So ordered.