Central Berkshire Regional Schools District and The Massachusetts Department of Education – BSEA # 06-3983



<br /> Central Berkshire Regional Schools District and The MAssachusetts Department of Education – BSEA # 06-3983<br />

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

In Re: Central Berkshire Regional School District and The Massachusetts Department of Education

BSEA # 06-3983

DECISION

This decision is issued pursuant to the Individuals with Disabilities Education Act (20 USC 1400 et seq .), the Commonwealth’s special education law (Mass. Gen. Laws c. 71B), the Commonwealth’s Administrative Procedure Act where applicable (Mass. Gen. Laws c. 30A), the regulations promulgated under those statutes, and particularly 603 CMR 28.10.

A hearing on this matter was waived by the parties. The parties agreed that the case would be decided on the documents submitted by the parties. Briefs and documents were due on and were received at the Bureau of Special Education Appeals on June 15, 2007 and the record closed on that date. The matter was administratively reassigned to Richard E. Connolly, Esq. who acts as hearing officer and issues this decision.

The parties were represented by counsel as follows: Regina Williams Tate, Esq., for the Central Berkshire Regional School District; Debra M. Comfort, Esq., for the Massachusetts Department of Education; and Joshua D. Krell, Esq., for Developmental School.1

The official record of the hearing consists of nineteen (19) documents submitted by the Central Berkshire Regional School District (hereinafter “Central Berkshire”) marked as exhibits RSD-1 through RSD-19; twenty-nine (29) documents submitted by the Developmental School (hereinafter “pediatric nursing home”) and marked as exhibits DS-1 through DS-29; and two (2) documents submitted by the Massachusetts Department of Education (hereinafter “DOE”) and marked as exhibits DOE-1 through DOE-2, as well as the briefs of the parties.

ISSUE

1 – Whether the Massachusetts Department of Education erred when it assigned to Central Berkshire Regional School District fiscal and programmatic responsibility for special education services provided to the student?

2 – If the assignment was not in error, what is the effective date of that assignment and what responsibilities arose on that date?

BACKGROUND

Student was born on November 3, 2000. (DS-3, 5.) At that time, mother resided in either one of towns not parties to this action. (DOE–1.) His father passed away before his birth. In May 2001 student was seen by a medical doctor who discovered healing fractures and pursuant to MGL c.119, s.51A filed a report of suspected abuse or neglect with the Massachusetts Department of Social Services (DSS). (DS–2 (DSS Foster Care Review Report).) DSS filed a Care and Protection petition on June 18, 2001 and obtained custody of student at that time. (DS-2.)

Student resided in a specialized foster home in July 2001, and at some point thereafter was admitted to a local Medical Center. (DS–2.) On September 13, 2001, the Massachusetts Department of Public Health (DPH) determined that student was eligible for residential care (DS-1), and on October 10, 2001 student began residing in and continues to reside in the pediatric nursing home. (DOE–1, RSD–3.) He has a wide range of severe disabilities that limit his cognitive functioning to approximately the three-month level. (RSD-15.)

In August 2003 student’s mother received permission from DSS to visit her mother (student’s maternal grandmother) in another state. (DOE-1.) In November 2003 student turned three years of age. “A free appropriate public education is available to all children with disabilities residing in the state between the ages of 3 and 21….” (20 USC 1412(a)(1)(A).) Mother was at that time in that other state but periodically communicating with student’s pediatric nursing home. (DOE-1.) There is no evidence in the record that a referral to either of the two school districts in the towns where mother may have resided when the student was born was made on behalf of the child, and therefore no attempt was made to evaluate his needs and determine whether he was eligible for special education. (There is no indication in the record that any party sought to join either of those two towns as a party to this matter. Nor is there any indication in the record that any party sought to join DSS as a party to this matter.)

In November 2004 student’s mother indicated to the pediatric nursing home that she intended to remain with her mother in that other state. (DOE-1.) In December 2004 the pediatric nursing home filed a report with DSS asserting that the student had been abandoned by his mother. (DOE-1.) Also in December 2004, the pediatric nursing home wrote to Mt. Greylock School District asking that district to take responsibility for the student. On December 18, 2005, Mt. Greylock denied responsibility asserting that mother was residing in that other state when student turned three-years-old. (DOE-1.)

On October 25, 2005, a judge in the Hampshire County Probate Court appointed student’s paternal grandmother guardian for student. (DS-5.) Student’s paternal grandmother (guardian) resides in a town within the Central Berkshire Regional School District. Id . On November 15, 2005, the pediatric nursing home asked the Central Berkshire Regional School District (Central Berkshire) – to assume responsibility for the student. (RSD-1.)

On December 1, 2005, the pediatric nursing home filed a request with DOE asking for clarification of fiscal and programmatic responsibility for student. (DOE-1.) On December 19, 2005, DOE assigned fiscal and programmatic responsibility to Central Berkshire. (DS-9, RSD-3.)

On February 6, 2006, Central Berkshire asked DOE to reconsider its assignment. (RSD-4.) On February 28, 2006, the Bureau of Special Education Appeals (BSEA) received from Central Berkshire a request for a hearing dated January 6, 2006 appealing DOE’s assignment of fiscal and programmatic responsibility to Central Berkshire. On April 3, 2006, DOE affirmed its original assignment dated December 19, 2005. (RSD-5.)

On April 12, 2006, Central Berkshire sent to guardian a form asking for consent to evaluate student. (RSD-6.) On May 1, 2006, Central Berkshire re-sent the form to guardian asking for consent to evaluate student. (RSD-7.) On June 15, 2006, guardian signed the form consenting to the school’s request to evaluate the student. (DS-20.)

On September 29, 2006, a TEAM meeting was convened by Central Berkshire to discuss the student’s special education needs and develop an Individualized Education Program (IEP) for student. (RSD-19, DS-23.) On October 25, 2006, Central Berkshire sent to guardian a proposed IEP. (RSD-19.) On October 31, 2006, guardian signed that IEP. (RSD-19, DS-23.) The accepted IEP provided for continuing the services student had been receiving at the pediatric nursing home.

In its brief, Central Berkshire acknowledges its responsibility for the cost of the educational component of student’s pediatric nursing home program as of October 31, 2006, the date the guardian signed the IEP. (RSD brief, p. 17.) The medical and residential costs of student’s pediatric nursing home program are paid for by DPH through the MassHealth program. (DS brief, p. 2.)

DISCUSSION

Student is an individual with a disability, falling within the purview of the Individuals with Disabilities Education Act (IDEA) (20 USC 1400 et seq.) and the state special education statute (MGL c. 71B.) The IDEA was enacted “to ensure that all children with disabilities have available to them a free appropriate public education [FAPE] that emphasizes special education and related services designed to meet their unique needs and prepare them for employment and independent living.” (20 USC 1400(d)(1)(A) and 1412(a)(1)(A), MGL c.71B, ss. 2, 3.) Neither Student’s eligibility status nor his entitlement to FAPE is in dispute.

Hearings at the BSEA on the question of school district responsibility are controlled by DOE regulation 603 CMR 28.00 et seq. Any decision issued by the BSEA is “limited to a determination of the assigned school district and the effective date of such assignment.” 603 CMR 28.10(9)(f). In this matter, Central Berkshire does not deny responsibility for the student. Instead, Central Berkshire contests the pediatric nursing home’s interpretation of the effective date of the assignment.

The pediatric nursing home asserts that Central Berkshire is responsible for student’s educational costs incurred by the pediatric nursing home back to the date the guardian was appointed – October 25, 2005. Central Berkshire, on the other hand, asserts that on December 19, 2005, when it was assigned responsibility for student, its obligation at that time was to evaluate student, convene a TEAM meeting to assess the student’s special education needs, and develop an IEP pursuant to the Team’s determination. Central Berkshire further asserts that it became responsible for the costs of services that student was receiving only when the IEP was signed – October 31, 2006.

A school district is responsible for the education of school-age children who reside in their district. (MGL c.76, s.5.) When a school-age child is in a pediatric nursing home, the residence of the parent(s) or guardian is the school district responsible for the education of the student. (603 CMR 28.10(3)(a).) Thus, Central Berkshire became responsible for student’s education effective upon the date of the court ordered guardianship. If therefore, student was not a special education student2 residing in a pediatric nursing home, he would have become the responsibility of the Central Berkshire public school system on or shortly after the guardianship became effective.

Evaluations designed to determine eligibility for special education should have occurred when student turned three (3) years of age (20 USC 1412(a)), but did not in this case. Had student been determined eligible when he turned three years of age, had student resided in a district different from Central Berkshire before the award of guardianship, and had the previous school district arranged for placement at the pediatric nursing home, then the so-called “move-in” law would have applied. (MGL c.71B, s. 5.) That is, the district of guardian’s residence (Central Berkshire) successfully could have argued that the student’s previous town of residence was responsible through June 30, 2006. Again, however, that did not happen in this case.

Instead, the record in this matter reveals no evidence of any effort by any entity to evaluate student for eligibility for special education services until the pediatric nursing home brought the award of guardianship to the attention of the Central Berkshire school district. Thus, there had been no previous determination that student was eligible for special education services, no previous or current IEP for student, and therefore no underlying mechanism for payment of services for the student that were characterized as special education services.

The IDEA requires a local education agency to “conduct a full evaluation …, before the initial provision of special education and related services ….” (20 USC 1414(a)(1)(A).) In addition, state regulations require a response from a parent or guardian in order to trigger the provision of services. “Upon parental response to the IEP and proposed placement, the school district shall implement all accepted elements of the IEP without delay.” 603 CMR 28.05(7)(b). And, DOE finance regulations require an IEP in order for special education costs to be paid by a local education agency. (603 CMR 10.00 et seq.)

Central Berkshire asserts that after the guardianship was awarded to paternal grandmother and after assignment of fiscal and programmatic responsibility by DOE, it was upon receipt of a consent to evaluate that it became responsible to evaluate the student and for the costs of evaluation, for convening a TEAM meeting and writing an IEP and for those associated costs, and that it became fiscally responsible for the services proposed in the IEP when it received from the guardian a signed IEP. The federal law and state regulations cited above support this view.

The pediatric nursing home points out, however, that four months passed between the time the district was assigned responsibility for student – December 19, 2005 – and when the district first sent to the guardian a form for consent to evaluate the student on April 12, 2006. Central Berkshire has advanced no basis that would excuse this delay.

A district must assume responsibility for a student’s education immediately upon assignment regardless of whether the district contests the assignment. (DOE SPED Advisory 2006-4.) The four-month delay between December 19, 2005 and April 12, 2006 was in part responsible for an IEP not being developed until October of the next (2006-07) school year. The guardian shares some responsibility for delay, however, since the guardian did not return the consent to evaluate form until two months after the district sent it to her.

Thus, if the district had acted timely, it would have sent the consent form on or about December 23, 2005. Had the guardian waited two months and three days (as did happen), the district would have received the consent on or about February 25, 2006. Then, pursuant to 603 CMR 28.05(1), the district had 45 school working days to evaluate, convene a TEAM, and propose an IEP. The district was entitled to await a response from guardian. “Upon parental response to the IEP and proposed placement, the school district shall implement all accepted elements of the IEP without delay.” (603 CMR 28.05 (7)(b).) Assuming a reasonably prompt response to the proposed IEP from the guardian, services would have commenced on or about May 1, 2006.

Accordingly, I find that unexcused delay by the district caused the IEP to be effective five months after it otherwise would have become effective. And, therefore, I find that had the district moved timely upon assignment in December 2005 and adhered to the regulatory timelines, the effective date of Central Berkshire’s fiscal and programmatically responsibility would have been on or about May 1, 2006.

This determination, however, leaves unaccounted for the time between when the guardian was appointed and the time when Central Berkshire became responsible for providing the special education services outlined in the IEP – from October 25, 2005 to May 1, 2006. During that time student had not yet been identified as a special needs student, therefore must be considered to be a regular education student. As noted above, a school district is responsible for the education of school-age children who reside in their district. (MGL c.76, s.5.) When paternal grandmother was appointed guardian of student on October 25, 2005, she became custodian “of his person” and responsible for his education. “The guardian of a minor shall have the custody of his person and the care of his education….” MGL c. 201, s.5. Since the guardian had physical custody of student, the place where she resided became the place where he resided. “ The domicil, or residence, of a minor child generally is the same as the domicil of the parent who has physical custody of the child. George H. and Irene L. Walker Home for Children v. Town of Franklin , 416 Mass. 291, 295 (1993), quoting Gil v. Servio , 375 Mass. 186, 189 (1978). See also City of Salem v. Bureau of Special Educ. Appeals of the Dep’t of Educ ., 444 Mass. 476, 482 (2005) citing Board of Educ. v. School Comm. Of Amesbury , 16 Mass. App. Ct. 508, 512 (1983) (“While the residence of a child is typically the same as that of the parent who has physical custody of the child, …the phrase ‘residing in’ in G.L. c.71B, s.3, ‘is not so obviously self-defining when considerations such as split families, guardianships, … enter the picture.’”). Central Berkshire, therefore, was responsible for student’s education from October 25, 2005, but as a regular education student up to the time of the signed IEP. I find that in addition to the special education costs identified above, Central Berkshire is responsible to the pediatric nursing home for the Central Berkshire average per pupil cost of a regular education student from October 25, 2005 to May 1, 2006.

ORDER

The Massachusetts Department of Education assignment of fiscal and programmatic responsibility for student to Central Berkshire Regional School District was correct. The Central Berkshire Regional School District is fiscally responsible for the costs of educating student as a non-special needs child from October 25, 2005 to May 1, 2006 and, commencing on May 1, 2006, fiscally responsible for the cost of special education services set out in the IEP.

By the Hearing Officer,

Richard E. Connolly

July 31, 2007


1

This publicly disseminated decision has been modified slightly to insure the confidentiality of the student.


2

Student here, however, was subsequently determined to be a child in need of special education pursuant to MGL c. 71B and 603 CMR 28.00 et seq


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