COMMONWEALTH OF MASSACHUSETTS
Bureau of Special Education Appeals
In Re: Abelard1 & Chicopee Public Schools
BSEA #06-3912
Ruling on Motion of Chicopee Public Schools to Join DSS and DMH
This matter comes before the Bureau on the Motion of the Chicopee Public Schools to Join the Massachusetts Department of Social Services (DSS) and the Massachusetts Department of Mental Health (DMH) in the instant IDEA appeal. Both state agencies opposed joinder and submitted briefs in support of their respective positions. The Student requested a hearing on February 24, 2006, seeking the placement in a residential special education program. He took no official position on the joinder issue.
A prehearing conference and motion hearing was held on April 7, 2006 at the Springfield offices of Catuogno Court Reporting Services. Representatives of all affected entities were in attendance. The predicate facts are not in dispute:
Factual Background
1. Abelard is a 15 year old with cognitive and emotional/psychiatric disabilities. He
receives special education services through the Chicopee Public Schools. He currently attends a therapeutic day school at the Springdale Educational Center in Holyoke. Abelard’s attendance has been problematic and the parties agree that were he to attend school regularly he would make “greater” progress.
2. Abelard is eligible to receive services through the Department of Mental Health. Since January 1999, DMH has provided case management, therapeutic recreational/social/activity groups, respite and family stabilization services to Abelard and his family. During the 2003-2004 school year DMH placed Abelard in a DMH residential program, Northampton Center for Children and Families (NCCF), which has an on-site school funded by the sending LEA. None of the DMH provided services was deemed fully appropriate. The DMH services were determined to be unsuccessful due to Abelard’s low cognitive functioning. After the Team determined that Abelard was not receiving any significant educational benefit from the NCCF program due to his inability to access and use the verbally and cognitively mediated treatment techniques, Abelard was transitioned to the Springdale Educational Center. DMH has offered and/or provided every service it has available to Abelard.
3. The Department of Social Services does not have care or custody of Abelard. There are no protective concerns. The Parent contacted DSS in February 2006, to inquire about voluntary family support services, but declined to enter into any agreement with DSS.
4. The Parent, at this point, retains all legal rights including educational decision making. In addition, the Student has a Guardian Ad Litem (GAL). Both are seeking placement in a comprehensive residential educational program. He states that the current day program is neither appropriate nor safe for Abelard. He points to significant difficulties with attendance, transportation, tantrums and/or avoidance before school, running away from vans and from entry/exit points. He also believes that Abelard has not made effective academic progress while placed at Springdale Educational Center. The GAL asserts that Abelard needs twenty four hour supervision, instruction and guidance in all activities of daily life, functional academics, vocational and prevocational training and behavior management in a structured, therapeutic setting in order to make educational progress.
5. The School contends that Abelard is making good progress at Springdale Educational Center. The School will put in appropriate transportation and personnel supports to improve his attendance. According to the School Abelard does not need a residential placement for educational reasons. Residential placement would instead address Abelard’s familial and/or mental health needs. Furthermore, if a residential placement is necessary to support a day school placement that is otherwise appropriate for Abelard, then another human service agency should be responsible for arranging and funding the residential component.
Discussion
BSEA Rule 1J permits a BSEA hearing officer to join another public agency to an IDEA action involving a student and her/his local school district when complete relief cannot be fashioned in the absence of the proposed party agency. See also 603 CMR 28.08 (3) and 34 CFR 300.142. In this matter the Student is asserting that his current day placement at Springdale Educational Center is not an appropriate special education program and that he needs a highly structured, therapeutic, residential educational program in order to receive FAPE. The complete relief requested by the Student is a residential special education program. That program would be the sole responsibility of the School should the Student prevail at hearing. While the knowledge and expertise of teachers, counselors and others who have provided services to Abelard under the auspices of DMH may be relevant, indeed critical, to the parties’ understanding of Abelard’s current educational needs, these may be secured without requiring DMH to participate as a party in this appeal. I find that the participation of the DMH in this hearing, while potentially helpful, is not necessary for resolution of the issue of whether Abelard needs a residential special education program in order to receive FAPE. Therefore there is no basis under BSEA Rule 1J for the involuntary joinder of DMH to this appeal. See : In Re: Attleborough Public Schools , 9 MSER 79 (2003); In Re: Ipswich Public Schools , 8 MSER 185 (2002). Turning to the DSS, it appears from the unrebutted statements of that agency that there is currently no custodial or service relationship between Abelard and/or his family and the Department of Social Services. Therefore I find that there is insufficient legal nexus between the Student and the public agency to support joinder. MGL. C. 71B § 3. 603 CMR 28.08 (3).
Orders :
1. The Motion of the Chicopee Public Schools to Join the Department of Mental Health is DENIED .
2. The Motion of the Chicopee Public Schools to Join the Department of Social Services is DENIED .
3. This matter will proceed to hearing on April 25 and 26, 2006 beginning at 10:00 a.m. at the offices of Catuogno Court Reporting Services, Monarch Place, 1414 Main Street, Springfield, MA.
4. Any supplementary documents and witness lists shall be submitted and exchanged no later than April 20, 2006.
April 18, 2006
Lindsay Byrne
1
“Abelard” is a pseudonym chosen by the Hearing Officer to protect the privacy of the Student in publicly available documents.