Dennis Yarmouth Regional School District – BSEA # 10-4763



<br /> Dennis-Yarmouth Regional School District – BSEA # 10-4763<br />

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

In Re: Dennis-Yarmouth Regional School District

BSEA # 10-4763

RULING RE JOINDER OF
MASSACHUSETTS DEPARTMENT OF DEVELOPMENTAL SERVICES
AND MASSACHUSETTS DEPARTMENT OF CHILDREN AND FAMILIES

Introduction

On February 3, 2010, Student’s Guardian filed a hearing request with the Bureau of Special Education Appeals (BSEA) seeking an order requiring Dennis-Yarmouth Regional School District (Dennis-Yarmouth) to provide a residential placement for Student. On February 8, 2010, Dennis-Yarmouth filed with the BSEA a motion to join the Massachusetts Department of Developmental Services (DDS). On February 11, 2010, Dennis-Yarmouth filed with the BSEA a motion to join the Massachusetts Department of Children and Families. DDS and DCF filed oppositions. The Guardian supports joinder of each agency. On February 24, 2010, a telephonic hearing was held on the motions.

As explained below, there is no dispute that Student requires residential services. The disagreement focuses on the question of whether Dennis-Yarmouth or some other public entity should bear responsibility for these services.

Facts

Student is a twenty-year-old young man who is eligible to receive special education services from Dennis-Yarmouth because of a combination of disabilities that include a progressive neurological disease, seizure disorder, chronic respiratory failure, and reduced vision. He also is non-ambulatory, has extensive medical needs, and has a history of aggression and violence. Dennis-Yarmouth does not dispute that it is responsible to pay for or provide Student’s special education and related services during the school day.

Student was adopted at the age of approximately four years old. Until May 2009, Student was living with his adoptive parent. He was then in a series of hospital and nursing home placements, which culminated in Student’s current placement at Franciscan Children’s Hospital beginning in September 2009.

On August 6, 2009, Student was placed under a full, court-appointed guardianship. The guardian is not Student’s adoptive parent.

It is not disputed that the current Franciscan Hospital placement is no longer appropriate for Student, that Student cannot now or in the foreseeable future go home to live with his adoptive parent, that he is unable to live safely alone, and that he must therefore be placed residentially.

Guardian alleges that harm to Student and others may occur because of the inadequacy of Student’s current special education services and that a new, appropriate residential placement is therefore needed as soon as possible.

Legal Framework

The issue before me is whether DDS or DCF or both should be joined as a necessary party. Pursuant to BSEA Hearing Rule 1J, joinder may be ordered upon a finding that (1) complete relief cannot be granted among the existing parties, or (2) the proposed party to be joined has an interest in this matter and is so situated that the dispute cannot be disposed of in its absence. Pursuant to Rule 1J, factors to be considered in determining whether to join a party are (1) the risk of prejudice to the present parties in the absence of the proposed party; (2) the range of alternatives for fashioning relief; (3) the inadequacy of a judgment entered in the proposed party’s absence; and (4) the existence of an alternative forum to resolve the issues.

I further note that statutory language regarding the jurisdiction of a BSEA Hearing Officer over state agencies (including DDS and DCF) provides, in part, as follows:

The [BSEA] 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 [now called the Department of Children and Families], the department of mental retardation [now called the Department of Developmental Services], the department of mental health, the department of public health, or any other state agency or program, in addition to the program and related services to be provided by the school committee.1

The phrase “in addition to” within this statutory language has been interpreted by BSEA Hearing Officers to mean that if a student’s needs can be met through the special education and related services which are the responsibility of the school district, complete relief can be granted without the need for the human service agency to become a party and joinder is not warranted, at least for the purpose of requiring the agency to provide services. This maintains the school district as the entity with sole responsibility for all those services to which the student is entitled pursuant to state and federal special education law.

However, if additional services from a human services agency (over and above those services that are the responsibility of the school district) may be necessary to ensure that the student will be able to access or benefit from the school district’s special education program and services, then joinder of the state agency may be appropriate, so that the BSEA may then consider what, if any, additional services should be ordered.2

Discussion

Guardian filed the hearing request, taking the position that Dennis-Yarmouth is responsible for providing residential services. In its response, Dennis-Yarmouth takes the position that any need that Student has for residential services is based upon his medical needs and his need for housing, is not based upon Student’s educational needs, and therefore is not Dennis-Yarmouth’s responsibility.

Student cannot be discharged from Franciscan Hospital to a residential placement because Dennis-Yarmouth refuses to provide these services; and because DDS and DCF dispute any responsibility for providing Student with additional services and thus they, too, decline to provide residential services.

It appears that Student is “stuck” in an inappropriate and possibly harmful placement. I find that it is imperative that the entire dispute be resolved as quickly as possible.

At this juncture, it is not possible to determine the likelihood that Dennis-Yarmouth is responsible to provide a residential educational placement. This can only occur through an evidentiary hearing that will determine the extent of its obligations under state and federal special education law.3

Similarly, it is not possible to determine at this juncture the likelihood that DDS may be required to provide any additional services, including the possibility of non-educational residential services. But, I consider now whether there is any apparent prohibition to my ordering DDS to do so in the instant dispute.

Student, who is 20 years old, is eligible to receive DDS services and, to date, has received service coordination and turning-22 planning services. DDS has relied upon its regulations that preclude its providing residential services to an individual who is 18 through 21 years of age if the individual is eligible for or is receiving residential services from a local educational authority, local school district, or any other public agency. 115 CMR 6.07(2)(b). However, these regulations provide no basis for me to determine that DDS could not be determined to be responsible for residential services for Student, assuming that I were to first find, after an evidentiary hearing, that Dennis-Yarmouth is not responsible for residential services in order to meet Student’s educational needs.4

Turning to DCF, I find that it would be unlikely that DCF could be required to provide residential services even if Dennis-Yarmouth were found not to be responsible for residential placement. Student is not under the care or custody of DCF, nor is he an active client of DCF. Because of Student’s age, it seems unlikely that this will change. DCF’s only current connection with Student is that Student is adopted and at the time of adoption, sixteen years ago, DCF agreed to assist financially the adoptive parent with an adoption subsidy. These subsidies have continued through the present. For reasons more fully explained within DCF’s opposition to joinder, the current, limited DCF involvement is unlikely to provide sufficient basis upon which the BSEA would have the authority to order residential services from DCF. In the event that this relationship or involvement changes, a motion to join DCF may be renewed.

Given the urgency of resolving this dispute, I am persuaded that Dennis-Yarmouth’s and DDS’s responsibilities should be determined through a single hearing (rather than through possibly separate evidentiary hearings) so that the entire dispute can be resolved and Student can be placed out of Franciscan Children’s Hospital as soon as possible.

For these reasons, joinder of DDS (but not DCF) will be allowed.

Order

Dennis-Yarmouth’s motion to join the Massachusetts Department of Developmental Services is ALLOWED .

Dennis-Yarmouth’s motion to join the Massachusetts Department of Children and Families is DENIED WITHOUT PREJUDICE .

By the Hearing Officer,

_________________

William Crane

Date: February 25, 2010


1

MGL c. 71B, s. 3. See also 603 CMR 28.08(3) (regulatory language similar to above-quoted statutory language).


2

E.g., In Re: Fall River Public Schools , BSEA # 09-6962, 15 MSER 152 (SEA MA 2009); In Re: Fall River Public Schools , BSEA # 07-2412, 13 MSER 40 (SEA MA 2007); In Re: Gloucester Public Schools , BSEA # 04-3543, 10 MSER 389 (SEA MA 2004); In Re: Fall River Public Schools , BSEA # 02-4839, 8 MSER 326 (SEA MA 2002); In Re: Ipswich Public Schools , BSEA # 02-4324, 8 MSER 185 (SEA MA 2002) and other rulings cited therein.


3

In certain cases, a school district may be required to provide a student with residential services. See, e.g., In Re: Hingham Public Schools , BSEA # 10-0592 (September 9, 2009) (determining that in order to receive an appropriate education, the student was entitled to receive residential services from the school district).


4

I have previously concluded that I have the authority to order DDS (then DMR) to provide residential services. In Re: Medford Public Schools , BSEA # 01-3941, 7 MSER 75 (May 31, 2001). Any determination of my authority to do so in the instant dispute will be made only after considering the evidence and the arguments of parties on the merits.


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