Fall River Public Schools – BSEA # 09-6962



<br /> Fall River Public Schools – BSEA # 09-6962<br />

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

In Re: Fall River Public Schools

BSEA # 09-6962

RULING RE JOINDER OF MASSACHUSETTS DEPARTMENT OF MENTAL HEALTH

Introduction

On May 27, 2009, Fall River Public Schools (Fall River) filed with the Bureau of Special Education Appeals (BSEA) a motion to join the Massachusetts Department of Mental Health (DMH). On June 2, 2009, DMH filed an opposition, and on June 23, 2009, a telephonic hearing was held on the motion. On June 23, 2009, this matter was re-assigned to the present Hearing Officer.

Facts

Student is a fifteen-year-old boy with a significant psychiatric history. He has been diagnosed with attention deficit hyperactivity disorder, oppositional defiant behavior, and Bipolar Disorder, although Parent does not believe that Student is properly diagnosed as having Bipolar Disorder. Student also has a history of extremely volatile and aggressive behaviors both within and outside of school.

Since 2001, Student has been receiving services from DMH, which have included community-based wrap-around services, case management, educational advocacy, and participation in therapeutic after-school programs. Student has been receiving special education services since kindergarten.

Currently and since December 2008, Student has been placed at Chauncy Hall, which is an Intensive Residential Treatment Program (IRTP) that is funded by DMH. He was admitted to Chauncy Hall from a Boston University IRTP because it closed. Previously, Student had been hospitalized in July 2008 due to violent behaviors and was transferred to the BU IRTP in August 2008.

Prior to his IRTP placements and hospitalization, Fall River had placed Student at the Southeast Alternative School (SAS) in Berkley, MA, as a day student. While Student was attending SAS, Fall River determined that SAS was no longer appropriate and proposed that he be transferred to the Bradley Day School in Rhode Island. Fall River continues to propose that Student be placed at the Bradley Day School upon his discharge from Chauncy Hall.

Positions of the Parties

Fall River believes that the dispute in chief pertains to what educational services are its responsibility, rather than a dispute regarding residential versus day services. Fall River filed the joinder motion, taking the position that Student does not require educational residential services; if residential services are needed, they are for non-educational reasons and therefore not the responsibility of Fall River. Fall River argues that its educational responsibilities under special education law are satisfied by Fall River’s proposed placement of Student at the Bradley Day School. Fall River seeks joinder so that DMH can be ordered to provide any needed non-educational services in addition to the educational services that are the responsibility of Fall River.

DMH opposes joinder. Based upon the June 18, 2009 recommendations of the clinical director of Chauncy Hall, DMH takes the position that Student is now ready to leave Chauncy Hall, but that Student can only be discharged to a residential placement, and that Student requires an integrated residential placement for educational reasons, with the result that Fall River should be solely responsible for the residential placement. Because DMH believes that it has provided and would continue to provide all necessary non-educational, mental health services to Student, DMH argues that joinder is unnecessary.

Parent, who currently is pro se , opposes the joinder motion. She seeks residential services for her son, taking the position that these services should be provided by Fall River because of her son’s educational needs. Parent commends the services provided by DMH and believes that it is now Fall River’s responsibility to provide a residential placement so that her son can be discharged from Chauncy Hall. Parent has made clear her view that it would be impossible for her to effectively manage her son’s behavior in the home.

Legal Framework

The issue before me is whether DMH 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 DMH) 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, 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

Student remains at Chauncy Hall, which is a DMH-funded residential treatment program, but this program is no longer appropriate for Student. Parent has taken the position, which is supported by DMH, that Student cannot return home at this time, that he cannot be maintained in a day educational program alone, and that he must be placed residentially. Student cannot be discharged through a residential placement because Fall River and DMH disagree as to whether Student requires residential services for educational reasons and therefore they disagree as to who should fund any required residential placement, with the result that Student remains at a residential treatment program that is no longer necessary or appropriate for him. Parent also alleges that there is a serious, negative impact upon Student as a result of his continued placement at Chauncy Hall. 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 Fall River is responsible to provide a residential educational placement. Similarly, it is not possible to determine the likelihood that DMH may be required to provide any additional services, including the possibility of non-educational residential services. However, I am persuaded that these issues should be addressed most efficiently through a single hearing, rather than through possibly separate evidentiary hearings, so that the entire dispute can be resolved as soon as possible. I also believe that DMH’s presence as a party will provide the Hearing Officer with valuable assistance towards the resolution of all aspects of this dispute. Hearing dates are scheduled for July 9 and 10, 2009, and DMH is available to participate in a hearing on these dates.

For these reasons, joinder will be allowed.

Order

Fall River’s motion to join the Massachusetts Department of Mental Health is ALLOWED .

By the Hearing Officer,

_________________

William Crane

Date: June 24, 2009


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 # 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.


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