COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
IN RE: Brockton Public Schools
BSEA# 02-3337
DECISION ON MOTION TO JOIN THE DEPARTMENT OF SOCIAL SERVICES AND THE DEPARTMENT OF MENTAL RETARDATION AS NECESSARY PARTIES TO THIS APPEAL
This decision is rendered pursuant to M.G.L. Chapters 15, 30A, and 71B; 20 U.S.C.§1400
et seq .; 29 U.S.C. §794; and all of the regulations promulgated under each of these statutes.
A hearing in the above-entitled matter was held on July 1, 2002 at the Massachusetts Department of Education in Malden, MA. The parties were given until July 8, 2002 to file any final arguments and/or documentation in support of their positions. The record closed on July 9, 2002. In consideration of this motion the Hearing Officer has considered all of the oral and written arguments submitted by the parties and potential parties, as well as all written pleadings, motions, statements of fact, memoranda, briefs, and written exhibits submitted.
HISTORY/STATEMENT OF THE CASE
On March 12, 2002 Parent, pro se, requested a BSEA hearing after rejecting the Individual Education Plan (IEP) proposed by the Brockton Public Schools (Brockton) covering March 2002 to March 2003 for Student. Such IEP proposes placing Student in a substantially separate special education classroom located at the Downey School in Brockton.
A pre-hearing conference was held on April 4, 2002 with Parent and Brockton participating. Brockton stated its intention to move to join the Department of Social Services (DSS) and the Department of Mental Retardation (DMR). Parent did not oppose Brockton’s request. On April 26, 2002 Brockton filed its Motion To Join DSS And DMR, with accompanying argument and exhibits. During May 2002 DSS and DMR filed requests for extensions of time to respond and subsequently filed Oppositions To Joinder with accompanying argument. Also during May 2002 Parent obtained counsel who filed for a time extension, then filed Student’s Response To Brockton’s Motion To Join DSS and DMR as well as Student’s Amended Hearing Request. A Pre-Hearing Conference and Motions Session was held on June 6, 2002 and a potential resolution was reached without formally arguing Brockton’s Joinder Motion. Via follow up conference calls it became apparent that resolution would not be possible and a Hearing On Motion To Join DSS And DMR was scheduled for and took place on July 1, 2002. DSS and DMR filed Supplemental Memoranda and Exhibits on July 1, 2002. Brockton and Student were given until July 8, 2002 to file any final arguments/exhibits to respond to the DSS and DMR supplementary filings. Brockton filed a Supplemental Memorandum on July 8, 2002.
STATEMENT OF FACTS
Student is a 7 year 11 month year old boy diagnosed with Pervasive Developmental Disorder/Autism (PDD). He also possesses many of the features found in individuals with Attention Deficit Disorder with Hyperactively (ADHD). Cognitive/developmental testing finds him functioning at the mild mental retardation level. His pre-academic skills are over two years behind. His adaptive behavior assessment found him delayed by over four years. A social skills assessment found him to be functioning at the 1 st percentile. (See Brockton-1).
Student is currently a patient at Pembroke Hospital (Pembroke}in a children’s psychiatric unit. He was initially admitted to Pembroke on June 24, 2001 for out of control, violent, destructive behaviors. He was discharged on July 27, 2002 but was readmitted to Pembroke on September 1, 2001 for aggression, assaults at home, fecal smearing, dangerous impulsivity, elopment, property destruction and the inability to be safety contained at home. Student is on multiple medications for agitation, aggression, anxiety and depression as well as behavioral plans for managing aggression. Student currently remains at Pembroke due to his inability to decrease problematic behaviors, most notably aggressive behaviors, failure to comply with adults requests, leaving the area without authorization and property destruction. (See Brockton-1).
Pembroke strongly recommends residential placement for Student noting on April 16, 2002:
After a comprehensive evaluation the treatment team here at Pembroke Hospital again strongly recommends residential placement for [Student]. [Student] was hospitalized on July 1, 2001 to July 27, 2001 with community supports in place. [Student] was involved with individual and family treatment, medical management, behavioral management, as well as FST. Despite these supportive services in place, [Student] was unable to remain in control of his behavior which caused a readmission to Pembroke Hospital on September 6, 2001, where he has been ever since. [Student] is in need of one to one supervision twenty-four hours a day due to his impulsivity. He has continued to show the same level of impulsivity and need for residential treatment. (See Brockton-2).
Dr. Putman, a psychologist with the May Institute finds:
[Student] presents with significant behavior issues associated with pervasive developmental disorder access his home and school setting. These must be addressed more effectively if he is going to succeed in school, at home and in the community. More effective behavior supports will need to be provided that demonstrate empirically based prosocial skills development as well as reductions in his maladaptive behaviors. (Brockton –1).
Dr. Putnam notes that given the severity of Student’s current behavior problems at Pembroke, he will need intensive interventions designed to ensure his success at home which would have to be provided at home both after school and on weekends for Student to be successful. If such services cannot be arranged in his home, Dr. Putman believes if would be preferable to have Student remain in Brockton’s Downey School program and place Student in a specialized foster care home that emphasizes a teaching family model. (See Brockton – 1).
STATEMENT OF POSITIONS
Brockton’s Position
Brockton states that its substantially separate program at the Downey School for students
with PDD and severe behavioral issues with its strong behavioral component, behavioral support plans, and consultation with a behavioral specialist provides Student with a free and appropriate education (FAPE) in the least restrictive educational environment. Brockton contends that Student “requires a safe place to live, where he can be adequately supervised, in order to attend his public school program”. Brockton moves to join DSS because Student was, for a time during which Student was at Pembroke, a client of DSS pursuant to a 51A. Brockton moves to join DMR since Student has been determined eligible for DMR services and is currently a priority 4 (lowest priority). Brockton contends that support services from DSS and DR run from in-home services to residential placement outside of the home which Student requires in order to continue to participate in Brockton’s proposed educational program.
DSS’s Position
DSS opposes Brockton’s Joinder Motion. DSS states that following receipt of a report of child abuse and neglect filed pursuant to M.G.L. c. 119 s. 51A, DSS had brief involvement with the family from December 2001 until April 5, 2002. During that 4 month period of time services were provided to Student’s family on a voluntary basis and protective issues were resolved to the satisfaction of DSS within a relatively brief period of time. DSS sent Parent a letter dated March 23, 2002, notifying her that her case would be closed on April 5, 2002 and that she had the right to request a fair hearing to challenge DSS’s decision (DSS-A). Parent did not request a fair hearing and DSS closed the case and terminated serves on April 5, 2002. At the time of the case closing, DSS understood that Parent intended to pursue obtaining a residential placement for Student through Brockton.1
DSS contends that, except for cases in which a court awards custody of a child to DSS, DSS services are provided only with the agreement of the parent (110 CMR 4.01 et seq.). DSS contends that in situations in which it does not have legal custody of a child, a parent may apply for voluntary services from DSS, including placement of a child out-of-home (voluntary placement –110 CMR 4.10). DSS argues that there is nothing in law or policy to suggest that Brockton can make or compel a parent’s application to DSS which, in effect, Brockton seeks to accomplish through joinder. DSS argues that joinder of DSS should not be considered when a child has no open case with DSS unless and until a parent assents to the involvement of DSS. Finally, DSS argues that, except for short term placements, an order requiring DSS to provide residential services would likely result in a parent losing custody of the child.
DMR’s Position
DMR also opposes Brockton’s Joinder Motion. Pursuant to 115 CMR 6.05 DMR states that Student, being under 18 years old with a developmental disability, is eligible for family support services. Under 115 CMR 6.07(2) Prioritization for Supports to Children and Families it is provided that:
The Department seeks to proved certain supports to the families of children with developmental disabilities to enable the family to stay together to be contributing members of their communities. These supports are intended to assist, not to replace or substitute for, the child’s family. The responsibility to provide a home and parental care and guidance rests with the child’s parents or, in the event of their absence or incapacity, with the public agency responsible for ensuring the care and protection of children generally, i.e., the Department of Social Services or its successor.
DMR contends that family support services include such things as a personal care attendant, respite care, intensive care management and behavioral supports but not residential placements. DMR states that once Student returns home, his priority status will be re-addressed.
Student’s Position
Student, via his Amended Hearing Request, contends: 1) that Brockton had failed to provide Student with FAPE by failing to provide Student with an appropriate residential placement; 2) that Student requires 1:1 supervision 24 hours per day and requires a residential placement to address his behaviors, delays and lack of progress; and 3) requests the Hearing Officer to order Brockton to place Student in an appropriate residential education program. Regarding Brockton’s Joinder Motion, Student does not oppose joinder but believes that the request is untimely; may prove to be unnecessary; and would be relevant only after a BSEA hearing regarding whether Brockton must
provide a residential placement in order to provide Student with FAPE. Student contends that the evidence at the BSEA hearing will demonstrate that Student requires a behaviorally based residential program and that, unless it is determined that Brockton is not responsible for providing such program, DSS and DMR are not required to be joined to this appeal.
RULING
Based upon the evidence, documentation and written submissions/memoranda presented; the oral argument presented; and a review of the applicable law; I conclude that Brockton’s Motion To Join DSS and DMR As Necessary Parties To This Appeal must be DENIED .
My analysis follows.
Pursuant to BSEA Hearing Rule 1(F) joinder is appropriate where:
complete relief cannot be granted among those who are already parties, or the person being joined has an interest relating to the subject matter of the case and is so situated that the case cannot be disposed of in their absence.
Pursuant to M.G. L. c 71B s.3, as amended by chapter 157, section 162 of the Acts of 2000, as codified in 603 CMR 28.08(3):
Bureau of Special Education Appeals: Jurisdiction . In order to provide for the resolution of differences of opinion among school districts, private schools, parents, and state agencies, the Bureau of Special Education Appeals…. shall conduct mediations and hearings to resolve such disputes. The jurisdiction of the Bureau of Special Education Appeals over state agencies, however, shall be exercised consistent with 34 CFR 300.142(a). The hearing officer may determine, in accordance with the rules, regulations and policies of the respective agencies, that services shall be provided by the Department of Social Services, the Department of Mental Retardation, The Department of Mental Health, the Department of Public Health, or any other state agency or program, in addition to the IEP services to be provided by the school district.
The issue of joinder of other state agencies has been addressed with increasing frequency by the BSEA, with joinder sometimes being granted and sometimes being denied based upon the specific facts and circumstances of the particular case. Based upon the facts and circumstances presented in this case, I find that the standards for joinder under BSEA Hearing Rule 1(F) have not been met. Parent/Student, DMR and DSS all argue that it is Brockton’s responsibility to provide a residential educational program for Student in order for Student to receive FAPE under state and federal special education law. Parent/Student, DMR and DSS also all argue that complete relief can be obtained without the joinder of DMR and DSS. (See STATEMENT OF POSITIONS , above).
Clearly, a BSEA decision finding that Student requires a residential program in order to address Student’s special education needs so as to provide him with a free and appropriate education and an order directing Brockton to provide such residential program does not require the joinder of either DSS or DMR. Conversely, a BSEA decision finding that Student requires something less than a residential placement to address his special education needs so as to provide him with FAPE (i.e., Brockton’s proposed public school program or an out-of-district private day school program either with or without extended day and/or extended year services) and an order directing Brockton to provide such placement/services also does not require the joinder of either DSS or DMR. Student/Parent could have joined or supported Brockton’s Joinder Motion but did not. Student/Parent could have brought their own motion to join either DSS or DMR but did not. Therefore if, after the BSEA Decision, Student/Parent believes Student requires any additional services they may, if they wish, pursue such services directly from DSS and/or DMR.
Further, based upon 603 CMR 28.08(3) the Hearing Officer may determine, in accordance with the rules, regulations and policies of the respective agencies, that services shall be provided in addition to the IEP services to be provided by the school. Based upon the facts presented in this particular case, such rules, regulations and policies of DSS and DMR demonstrate that joinder of these agencies would serve no productive purpose.
With regard to DSS, Parent/Student had only brief involvement with DSS. DSS closed its case with Parent prior to Brockton’s filing of its motion to join DSS. Parent was offered notification and the opportunity to challenge the termination of DSS services (DSS-A) but she did not appeal the DSS decision and the timelines for doing so have now passed. (See 110 CMR 10.08 (1) — DSS-C). Pursuant to 110 CMR 4.01 et seq., Parent has continued to have the opportunity to apply for services from DSS (DSS-A) but she had failed and/or refused to do so, even after obtaining legal representation. Given that: 1) DSS has no court ordered legal custody of Student; 2) there is no open DSS case regarding this Student or Parent; 3) Parent has not applied to DSS for a voluntary, out-of-the home placement for Student pursuant to 110 CMR 4.10; and 4) Parent has not even applied for, requested, or voluntarily agreed to any DSS services or involvement pursuant to 110 CMR 4.01 et seq.; I find no justifiable basis for joining DSS. Pursuant to 603 CMR 28.08(3) I have no authority to compel Parent to apply for or assent to DSS services or DSS involvement.2
Similarly, with regard to DMR, based upon the facts presented in this case, the rules, regulations and policies of DMR demonstrate that joinder of DMR would serve no productive purpose. Brockton points to In re: Medford Public Schools, BSEA #01-3941 and 7 MSER 82 (2001) in which a BSEA Hearing Officer order joinder of DMR. This Hearing Officer also notes In re: Fitchburg Public Schools, BSEA #02-0038 (2002) in which a BSEA Hearing Officer ordered joinder of DMR. However, in both of these cases the Students were over 18 years old and, pursuant to 115 CMR 6.03, DMR had found both Students generally eligible for adult services from DMR, including the eligibility for residential service from DMR. Further, I note that in both the Medford and Fitchburg cases, parents and/or students supported the joinder of DMR. Such cases and facts are clearly distinguishable from the instant where Student is under the age of 18 age and has a much more limited eligibility for family support services pursuant to 115 CMR 6.05. (See also 115 CMR 6.07(2) cited under DMR’s Position, above). Indeed, in 2 other recent BSEA cases – In re: Haverhill Public Schools, BSEA # 02-0567 and 7 MSER 268 (2002), and In re: Auburn Public Schools, BSEA # 02- 0983 (2002) – BSEA Hearing Officers denied joinder of DMR where Students were under 18 years of age and were only eligible for the more limited family support services from DMR but not generally eligible for the more extensive, over age 18 adult services from DMR. The facts in both Haverhill and Auburn are most clearly analogous with the situation in the instant case.
ORDER
Brockton Public Schools’ Motion To Join DSS And DMR As Necessary Parties To This Appeal is hereby DENIED .
By the Hearing Officer,
___________________
Raymond Oliver
Dated: August 1, 2002
1
I note that at the time DSS closed its case, Parent had filed her BSEA appeal but no motion to join DSS had yet been filed. I also note that when DSS closed its case that Student still remained in the child psychiatric unit of Pembroke Hospital and remains there today.
2
I note Brockton’s argument that in another Brockton case, BSEA #02-0310 also reproduced at 7 MSER 243 (2001), a BSEA Hearing Officer did order the joinder of DSS. However, the facts of that case were clearly distinguishable from the current case. In that case: 1) Student had an active, open case with DSS, with a DSS caseworker assigned to oversee the case; 2) Student was also the subject of an open CHINS petition before the Court (although DSS had not been awarded custody); and 3) DSS had funded a residential placement for Student during the 1999-2000 school year. Thus, in that case there was clear, active, ongoing, relatively long term DSS involvement. No such factors are present in the case currently before me, as articulated above.