Cohasset Public Schools v. Student and Department of Education and Norton Public Schools – BSEA # 05-3397



<br /> Cohasset Public Schools v. Student and Department of Education and Norton Public Schools – BSEA # 05-3397<br />

COMMONWEALTH OF MASSACHUSETTS

SPECIAL EDUCATION APPEALS

Cohasset Public Schools v. Student & Department of Education & Norton Public Schools BSEA #05-33971

CORRECTED DECISION

This decision is issued pursuant to M.G.L. c. 71B and 30A, 20 U.S.C. § 1401 et seq ., 29 U.S.C. § 794, and the regulations promulgated under said statutes.

By agreement of the parties, this matter is decided on the documents without an evidentiary hearing pursuant to BSEA Hearing Rule 11A.

The official record consists of Cohasset School Committee’s Hearing Brief on Remand and attached exhibits 1, 2A-2D, DA-DB (C-1, C-2A-C2D, C-DA-C-DB) and Norton School Committee’s Memorandum of Law and attached exhibits 1, 3, and 4 (N-,1, N-3, and N-4) filed with the Bureau of Special Education Appeals on December 12, 2005.2

PROCEDURAL HISTORY

This case is on remand from the Bristol Superior Court. On February 2, 2005, the BSEA received the Clerk’s Notice of Remand. A notice of hearing was sent on February 3, 2005 and the hearing was scheduled for February 23, 2005. On February 8, 2005, Cohasset requested a postponement of the hearing which was allowed and a conference call was held on March 8, 2005. The parties informed the hearing officer that Cohasset had filed an appeal of the superior court’s ruling allowing Norton’s Motion for stay of administrative order pending appeal. The parties requested permission to submit a written status update in thirty days which was allowed. On March 8, 2005, Cohasset’s Motion was denied without prejudice. On April 7, 2005, Norton’s counsel informed the BSEA that Norton was filing a motion for leave to present additional evidence in the superior court. On April 8, 2005, the BSEA granted Norton’s request to postpone the hearing pending the superior court’s ruling. Parties were ordered to provide the hearing officer with a written status update by April 29, 2005. On May 9, 2005, the BSEA granted another postponement request when Norton reported that motions remained pending in the superior court. There was a hearing officer initiated telephone conference call on June 6, 2005. During the conference call Norton requested permission to file a motion to join Middleboro to said action and the hearing officer set a deadline of June 10 for the filing of said motion. Cohasset’s Motion to Amend the Hearing Request was denied on June 21, 2005. Norton’s Motion to join Middleboro was denied on August 10, 2005. There was a telephone conference call on September 8, 2005 during which the parties agreed that the decision would be issued based upon submission of written documents which would be due on October 21, 2005. On October 25, 2005, Norton’s counsel requested an additional month to submit briefs due to the death of her father and law partner. The request was assented to and allowed. On November 25, 2005, Norton’s counsel submitted another assented to request for additional time to submit her brief. The request was allowed and the due date became December 12, 2005. On December 12, 2005, Norton and Cohasset submitted their briefs and supporting exhibits. The Department of Education did not submit a brief or exhibits.

ISSUE

The Cohasset Public Schools challenges the Department of Education’s LEA Assignment and determination that Cohasset Public Schools is fiscally responsible for Student’s educational placement.

SUMMARY OF THE EVIDENCE3

1. The student (hereinafter, “Student”) is a 19 year-old residential student at the May Center for Neuro-Rehabilitation in Brockton, Massachusetts. (N-3)

2. On November 20, 2003, Attorney George Marlette of Cohasset was appointed Student’s temporary legal guardian by the Plymouth Probate Court. The appointment was limited to a period of ninety days and expired on February 18, 2004. (N-2, C-1)

3. Attorney Marlette continued to act in his capacity as Student’s legal guardian from the time of his temporary appointment through the date of the Permanent Decree of Guardianship, April 2, 2004. (N-4, C-2) He attended Student’s IEP Team meeting on February 6, 2004 and signed the IEP on March 22, 2004. (N-3)

4. On April 7, 2004, Norton Public Schools (hereafter, Norton) notified the May Center and Cohasset Public Schools that effective July 1, 2004 it would no longer assume financial responsibility for Student’s May Center placement. (N-5, C-5)

5. On or about May 20, 2004, Cohasset Public Schools sent a Request for Clarification of School District Assignment to the Department of Education. In its request, Cohasset reported that it received Norton’s letter advising it of Attorney Marlette’s guardianship and Cohasset’s purported fiscal responsibility effective July 1, 2004 on April 15, 2004 and received another letter with a copy of the November 20, 2003 temporary guardianship appointment on May 19, 2004. Cohasset took the position that receiving said notification on May 19, 2004 with the expectation that it assume fiscal responsibility on July 1, 2004 violated the “spirit of the Amendment of the Move-In-Law.” (C-6)

6. On June 7, 2004, Marcia Mittnacht, State Director for Special Education, wrote a letter to Cohasset’s Director of Student Services regarding her request for an LEA assignment. The letter indicated that although Norton should have informed Cohasset when it learned of Mr. Marlette’s guardianship appointment in November 2003, it did not “change the fact that Cohasset’s programmatic responsibility began when Mr. Marlette became the guardian.” The letter stated that fiscal responsibility for the student would begin on July 1, 2004. (C-7, N-8)

7. On June 21, 2004, Cohasset requested a hearing with the Bureau of Special Education Appeals contesting its assignment as the district with fiscal responsibility for the student due to a lapse in guardianship, the application of the “move-in law” and lack of adequate notice to Cohasset. (C-8)

8. On June 30, 2004, Attorney George Marlette wrote a letter to Ann Silver of the Department of Education regarding student’s guardianship. In his letter he stated that he was appointed Student’s temporary guardian from November 20, 2003 until February 18, 2004. He reported, “When it became apparent that no interested party intended to pursue a reinstatement of the guardianship authority, I appeared pro se before the Honorable James V. Menno and secured a Permanent Decree of Guardianship dated April 2, 2004.” Additionally, he reported that although it is customary for a guardianship to be reinstated nunc pro tunc to the date on which the Temporary Decree expired, no such request was made in the case at bar. He further wrote, “no one was able to articulate any valid reason for covering a gap in the guardianship.” (C-4)

9. On July 13, 2004, Ann Silver wrote a letter to John Atwood, Director of Guidance and Special Education of the Norton Public Schools. The letter indicated that Cohasset requested a review of the DOE’s decision regarding fiscal responsibility. It stated, “according to new information this office has received, regarding the guardianship of this student, it now appears that Norton Public Schools may remain the fiscally responsible school district.” (C-9)

10. On October 20, 2004, the BSEA issued a decision in BSEA #04-5554. The BSEA found Norton fiscally responsible for Student until the end of the fiscal year ending in 2004 and for the duration of the fiscal year ending in 2005 due to the application of the “move-in” law in light of the lapse in Attorney Marlette’s guardianship. 2(C-2D)

11. On October 12, 2004, Attorney Marlette filed a Motion for Reconsideration of Permanent Decree of Guardianship Dated April 2, 2004 and For Issuance of Amended Decree Nunc Pro Tunc to February 18, 2004. (N-1) In his motion he wrote

I have learned that the gap in my decree could also be potentially determinative on issues of fiscal and programmatic responsibility of the various school systems involved with [Student] in that it is my understanding that according to the move-in-law the custodial parent or legal guardians [sic] domicile as of April 1 of a given year is determinative according to the move-in law for purposes of fiscal responsibility; (N-1)

12. The Plymouth Probate and Family Court allowed Attorney Marlette’s Motion on November 16, 2004, and his appointment became permanent nunc pro tunc to February 18, 2004. (N-1)

13. On January 18, 2005, Associate Justice David A. McLaughlin of the Bristol County Superior Court issued an order remanding the matter to the BSEA for further consideration. That order read in relevant part, “Through no fault of the administrative agency, it appear that a finding by the agency is in conflict with a Nunc pro tunc order issued by a court of competent jurisdiction after the decision which is subject of this appeal. Deference to the agency requires that it be granted the opportunity to consider that Court’s order.”(See Administrative file.)

14. On or about May 5, 2005, the Bristol County Superior Court allowed Norton’s Motion for leave to submit additional evidence, “the November 16, 2004, order of the Plymouth Probate Court.” (C-1)

15. On or about May 5, 2005, the Bristol County Superior Court allowed Cohasset’s Motion for leave to submit additional evidence, including “(1) the March 29, 2005, Motion for Appointment of a Temporary Co-Guardian filed in the Plymouth County Probate Court; (2) the Affidavit of Necessity of George Marlette filed in support of that motion; (3) the Probate Court’s March 30, 2005, order appointing the student’s father, [Father], who resides in Norton and who was the student’s custodial parent pursuant to a valid order of the Probate Court prior to the student’s placement at the May Institute in Brockton, as temporary co-guardian nunc pro tunc to February 18, 2004; and (4) any other relevant evidence concerning the nature and extent of George Marlette’s guardianship and the circumstances of his appointment and [father]’s co-guardianship. (C-2)

16. Attorney Marlette considered resigning as legal guardian for Student so that Cohasset would not be liable for Student’s educational expenses, but did not believe that would be in Student’s best interest. He believed that Student’s interests would best be served by adding a co-guardian from the community with the most meaningful contacts with her. In an unrelated matter, Attorney Marlette resigned as guardian for a student to prevent his town of residence from being responsible for said student’s educational costs. (C-2AB)

17. On March 30, 2005, the Plymouth Probate Court allowed Attorney Marlette’s Motion for Appointment of a temporary co-guardian which contained a provision requesting that the court order that Student’s residence shall be the place of her father’s residence, and student’s father was appointed temporary co-guardian nunc pro tunc to February 18, 2004. (C-2A)

18. The Decree issued by the court regarding the father’s appointment of temporary co-guardian is dated March 30, 2005 nunc pro tunc to February 18, 2004. The decree does not contain any notation regarding Student’s residence. (C-2C)

19. Student’s father’s November 27, 2005 affidavit states that he has always actively participated in his daughter’s care and decisions related to her care, education, and financial security. He states that he was appointed his daughter’s temporary co-guardian in recognition of his active participation in Student’s care. (C-2D)

20. On June 7, 2005, Student’s father’s temporary co-guardianship was extended and Student’s Mother, a Norton resident, was appointed a temporary co-guardian of Student. (C-2DA) Their appointments were made permanent on September 7, 2005. (C-2D, C-2DB)

21. Attorney Marlette continues to be guardian of the person and estate of Student and Student’s parents’ appointment indicates they are to “act with George L. Marlette.” (C-2DB)

FINDINGS AND CONCLUSIONS

This matter is before me on remand from the Bristol County Superior Court. Essentially, I am required to re-examine the October 20, 2004 decision in light of the new evidence that is now before me pursuant to the court’s May 5, 2005 orders allowing Cohasset and Norton to submit additional evidence for my consideration. (See paragraphs 14 and 15 above.) The agency (or hearing officer) “[M]ay modify its findings and decision by reason of such additional evidence and shall file with the reviewing court, to become part of the record, the additional evidence, together with any modified or new findings or decision.” M.G. L. c. 30A, section 14(6).

Previously, Cohasset requested a hearing with the BSEA contesting its assignment as the district with fiscal responsibility for the student due to a lapse in guardianship, the application of the “move-in law” and lack of adequate notice to Cohasset. (See decision in BSEA # 04-5554, paragraph 8, page 2.) It did not dispute the department’s authority to assign fiscal responsibility to a community based upon the residence of a student’s legal guardian.

When the October 24, 2004 decision was issued by the BSEA, Student had one legal guardian, Attorney Marlette, a Cohasset resident, whose guardianship had lapsed between February 18, 2004, when his temporary appointment expired and April 2, 2004, when his permanent decree was entered. Cohasset argued that by virtue of the application of the move-in law, the lapse in Attorney Marlette’s guardianship constituted a move for Student. Cohasset persuasively argued that it was no longer fiscally responsible for Student’s education when Attorney Marlette’s guardianship lapsed.

Currently, the lapse in guardianship has been cured by the Plymouth Probate Court’s November 16, 2004 order making Attorney Marlette’s appointment permanent nunc pro tunc to February 18, 2004. Additionally, Student’s father, a Norton resident, has been appointed co-guardian nunc pro tunc to February 18, 20044 .

For the purposes of this remand, Student has two legal co-guardians, Attorney Marlette, a Cohasset resident, and Father, a Norton resident. Cohasset argues that for reasons of fairness, the BSEA should determine that the community where Student grew up and to which she has the most ties and where she would reside if she were to leave the May Center should be financially responsible for Student despite the fact that she has two co-guardians from different districts. Additionally, Cohasset points to the Plymouth Probate Court Order which declares Student’s residence to be that of her father. (See C-2A.) However, both the move-in law, and the relevant regulations determine fiscal responsibility based upon the residence of the guardian or parent making Student’s residence irrelevant.

From November 18, 2003 until February 18, 2004, Attorney Marlette was the sole legal guardian of Student. His residence was Cohasset, therefore, Cohasset was solely fiscally responsible for Student at least through fiscal year 2004. Under the “move-in” law5 , the addition of a co-guardian in February 18, 2004 would have no impact on fiscal responsibility for the remainder of fiscal year 20046 , because the change in legal guardianship occurred after July 1, 2003 and before the period of April 1 through June 30, 2004. (See M.G.L. c. 71B, section 5.) Student began the 2005 fiscal year7 with a guardian living in Cohasset and a co-guardian living in Norton. The impact of the addition of a co-guardian is the issue upon which fiscal responsibility for the 2005 fiscal year will be determined.

Although Cohasset argues that fiscal responsibility for Student should be determined on the basis of Student’s and her parents’ contacts with Norton, 603 C.M.R. 28.03(4) indicates that responsibility for students is based on residency and enrollment and the definitions of resident school district, parent’s school district, and other standards delineated in 28.03(4). (See 28.03(4).) 28.03(4)(b) indicates that

The parent’s school district shall have both programmatic and financial responsibility when eligible students…require an out of district placement and such students live and receive special education services at approved special education residential schools….28.03(4)(b)

To determine what is meant by “parent’s school district” I look to the definitions of parent and parent’s school district provided at 28.02(15)-(16).

Parent is defined as “father, mother, guardian, person acting as a parent of the child, or an educational surrogate parent appointed in accordance with federal law. Legal authority of the parent shall transfer to the student when the student reaches eighteen (18) years of age.” 28.02(15). In this case, although Student is over 18 years of age, legal authority did not transfer to her due to her inability to make informed decisions on her own behalf. Instead, legal authority to make informed decisions on her behalf transferred to the guardian, Attorney Marlette, and then to father and Attorney Marlette as co-guardians commencing on February 18, 2004. Thus, under the aforementioned definition, the term “parent,” as used in the aforementioned regulation means Attorney Marlette, until February 18, 2004, and Attorney Marlette and Father subsequently.

Parent’s school district , as defined by these regulations, means “the school district where the father, mother, and/or guardian resides; or, if the parents are divorced or separated, the school district where the parent with physical custody of the student resides….” (28.02(16). The use of the term and/or signifies that the drafters of the regulation contemplated a situation in which a student may have both a parent and a guardian. Additionally, this definition makes clear that the relevant community in making a determination as to fiscal responsibility is the community where the parent and/or guardian reside, not the community where the student resides or the community where the guardian conducts professional business.

Applying the above definitions to 28.03(4)(b) cited above, results in a determination that both Attorney Marlette and Father (as of February 18, 2004) meet the definition of parent and therefore, both of their communities of residence are responsible for Student’s education for fiscal year 2005.

Although there is no regulation that specifies that co-guardians may be jointly responsible for a Student, the situation of a student having co-guardians is analogous to a student having two parents with joint custody. In such situations when the mother and father live in two different school districts, “such school districts shall be jointly responsible for fulfilling the requirements of these regulations.” 28.03(4)(e). The only exception to the aforementioned rule is when one parent has sole physical custody. Id . Student’s having two guardians with equal legal standing and without physical custody is analogous to a student having two custodial parents who share physical custody. Thus, Cohasset and Norton are jointly responsible for Student’s education for fiscal year 2005.

I am sympathetic to Cohasset’s arguments that it is unfair for a district to be responsible for a student simply because a non-custodial legal guardian lives within its community. It seems even more unfair given the circumstances in this case where Student grew up in a different community, resided within said community (with parents who continue to reside there) prior to being placed residentially, and would return to said community if she were to leave her residential placement. I am mindful of the chilling effect such application of the law has had on Attorney Marlette and could have on other guardians acting within the Commonwealth in terms of their willingness to accept appointments as guardians for students. However, I am bound to apply the law as written, irrespective of whether the result seems fair.

ORDER

Based upon new evidence presented to me, I modify my prior order as follows. Cohasset and Norton are jointly fiscally responsible for Student for fiscal year 2005.

By the Hearing Officer,

____________________________________

Catherine M. Putney-Yaceshyn

Dated: March 1, 2006


1

This case was assigned a new BSEA number despite the fact that it is on remand from the Bristol Superior Court (BSEA # 04-5554). The new BSEA number was assigned to track the case in the BSEA computer system as a matter of administrative convenience.


2

The Department of Education did not file any written documents.


3

Paragraphs one through nine are the same as reported in the original decision. Subsequent paragraphs reflect the new evidence that the Bristol Superior Court allowed the parties to submit to the BSEA for consideration.


4

Student’s mother has also been appointed a co-guardian. However, her guardianship began on June 7, 2005, a time beyond the scope of this hearing. Additionally, neither party requested or was granted permission by the superior court to present evidence regarding Mother’s co-guardianship. Therefore, the BSEA does not have jurisdiction to consider it.


5

The relevant portion of Chapter 71B, § 5 (the “move-in” law) reads,

If a child with a disability for whom a school committee currently provides or arranges for the provision of special education in an approved private day or residential school placement, including placement in a pediatric nursing home pursuant to the provisions of section 3, or his parent or guardian moves to a different school district on or after July 1 of any fiscal year, such school committee of the former community of residence shall pay the approved budgeted costs, including necessary transportation costs, of such day or residential placement, including placement in a pediatric nursing home, of such child for the balance of such fiscal year; provided, however, that if such move occurs between April 1 and June 30, such school committee of the former community of residence shall pay such costs for the balance of the fiscal year in which the move occurred as well as for the subsequent fiscal year.


6

July 1, 2003-June 30, 2004.


7

July 1, 2004-June 30, 2005


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