Fall River Public Schools – BSEA # 05-5383



<br /> Fall River Public Schools – BSEA # 05-5383<br />

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

In Re: Fall River Public Schools

BSEA # 05-5383

RULING ON JOINDER

Introduction .

Fall River Public Schools has filed a request to join Somerset Public Schools, which request Parent and Somerset have opposed.

Parent had previously filed with the BSEA a Hearing Request seeking public funding of an out-of-district placement. Faced with the possibility of a Hearing Officer-ordered out-of-district placement (following an evidentiary hearing scheduled for next week) and believing that Student lives both with Mother in Fall River and with Father in Somerset, Fall River filed a request for joinder of Somerset on the legal theory that Somerset and Fall River should be jointly responsible for any out-of-district placement.

This dispute regarding joinder raises the question of whether Somerset may be found liable, in part, for services that may possibly be ordered by the Hearing Officer and, if so, whether Somerset should be joined.

Facts .

Student spends each week with his Mother who lives in Fall River and spends each weekend with his Father who lives in Somerset. More specifically, Student sleeps at his Mother’s home in Fall River Sunday through Thursday evenings, and sleeps at his Father’s home in Somerset on Friday and Saturday evenings. Student is with his Father from Friday evening (5:00 PM or later) until Sunday afternoon or evening and is with his Mother for the remainder of the week. Affidavits of Mother; O’Neil.

Discussion .

Pursuant to BSEA Hearing Rule IJ, a Hearing Officer may allow a request that another party (in this case, Somerset) be joined as a party to these proceedings pursuant to the following standards:

Upon written request of a party, a Hearing Officer may allow for the joinder of a party in cases where complete relief cannot be granted among those who are already parties, or if the party 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 its absence. Factors considered in determination of joinder are: the risk of prejudice to the present parties in the absence of the proposed party; the range of alternatives for fashioning relief; the inadequacy of a judgment entered in the proposed party’s absence; and the existence of an alternative forum to resolve the issues.

I consider whether the joinder standards in this Rule are satisfied.

Pursuant to MGL c. 71B, assignment of the responsible school district is determined on the basis of the student’s residence.1 Where a student’s residence may be in doubt, for example, with split families, one turns for guidance to the Massachusetts Department of Education (DOE) which has been given the authority to resolve these issues through its regulations.2

The operative legal standard within the DOE regulations provides in relevant part as follows:

School district responsibility based on student residence. The school district where the student resides shall have both programmatic and financial responsibility under the following circumstances:
(a) When students live with their parent(s) or legal guardian.

1. . . . .

2. When a student who requires an out-of-district placement to implement his or her IEP lives with both of his or her parents during the school year, irrespective of school vacation periods, and the parents live in two different Massachusetts school districts, the school districts where the parents reside shall be equally responsible for fulfilling the requirements of 603 CMR 28.00 .3

Fall River takes the position that Somerset should be joined because Student lives, at least part of the time, with his Father in Somerset and therefore Somerset may be found equally responsible for any out-of-district placement. Somerset responds that the time spent with Father is simply a visit, by permission of Mother, and should not be considered to be a place where Student lives.

The above-quoted regulatory standard has only recently been adopted by DOE, and I am aware of no judge or hearing officer who has interpreted it.

Several things may be gleaned from the regulatory language itself. The use of the word “lives” and the fact that the regulatory standard anticipates the possibility of a student living in two places at the same time indicate that the focus of the standard is where the student actually lives, rather than legal residence. Also, the regulatory standard presumably makes relevant the amount of time that the student lives in each place, but it is also apparent that this cannot be the only consideration – otherwise, the regulatory standard would likely be phrased only in terms of a specific minimum length of time that the student must reside in each place in order for multiple school districts to be responsible. In seeking to understand what are those additional, relevant considerations (other than the amount of time spent in each place), I turn to the Walker decision.

In Walker Home for Children v. Franklin, the Massachusetts Supreme Judicial Court considered the question of where two students reside for purposes of school district responsibility pursuant to MGL c.71B. The Court’s decision includes the following guidance:

It is not contended that [the two students] ever “resided,” within the meaning of G. L. c. 71B, in Franklin. A person’s domicil is usually the place where he has his home. Home is the place where a person dwells and which is the center of his domestic, social and civil life.4

Although the Court was not considering the DOE regulatory standard in question (which post-dates the Walker decision), the Court’s analysis is relevant in light of the fact that the purpose, ultimately, of the instant DOE regulatory standard and the purpose of the Court’s analysis are the same – that is, to determine where a student lives or resides for purposes of resolving a dispute regarding school district responsibility.

Furthermore, the Walker analysis is consistent with the requirement found within the above-quoted regulatory standard that “school vacation periods” not be considered for purposes of determining where a student lives, presumably because a school vacation cannot normally establish any of the indicia of the “center of [the person’s] domestic, social and civil life.”

The Walker standard, read in conjunction with the regulatory language, requires more than a recitation that a student spends a certain amount of time each week in a particular city or town, particularly where the time is only on the weekends. It seems self-evident that spending each school day (and the morning before each school day as well as the afternoon after each school day) in a city or town would likely make that place a “center of his domestic, social and civil life”. However, spending only weekends in a city or town allows for no similar assumption to be made regarding the relevance and importance of this place in a student’s life, just as it would be unlikely that a vacation home would meet the requisite standard.

The facts in the instant dispute only tell us that Student spends most or all of each weekend with Father in Somerset and the remainder of the time with Mother in Fall River. No other facts have been provided by either party that might shed light on the question of whether Father’s place of residence might be considered, in any way, a “center of his domestic, social and civil life” under the Walker guidance above or might be considered, in any way, different than a vacation home that is used each weekend.

For these reasons, it is not possible for me to conclude that Student “lives” at Father’s residence on the basis of the factual record and in accordance with the DOE regulatory standard.

I find that Fall River has failed to satisfy its burden of proof regarding potential liability of Somerset for an out-of-district placement. The standard for joinder is not met since I cannot find that Somerset has an interest in these proceedings that would justify joinder pursuant to BSEA Rule IJ, or that complete relief cannot be granted among the existing parties.

Accordingly, Fall River’s request for joinder is DENIED.

By the Hearing Officer,

_________________

William Crane

Date: November 9, 2005


1

Walker Home for Children v. Franklin , 416 Mass. 291, 621 NE2d 376 (1993).


2

Id.


3

603 CMR 28.10(2) (emphasis supplied).


4

416 Mass. 291, 621 NE2d 376 (1993) (internal citations and quotations omitted).


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