Fall River Public Schools v. Department of Education and Franklin Public Schools – BSEA # 06-4240



<br /> Fall River Public Schools v. Department of Education and Franklin Public Schools – BSEA # 06-4240<br />

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

In Re: Fall River Public Schools v. Department Of Education & Franklin Public Schools

BSEA # 06-4240

DECISION

This decision is issued pursuant to the Individuals with Disabilities Education Act (20 USC 1400 et seq .), Section 504 of the Rehabilitation Act of 1973 (29 USC 794), the state special education law (MGL ch. 71B), the state Administrative Procedure Act (MGL ch. 30A) and the regulations promulgated under these statutes.

Fall River Public Schools filed its Request for Hearing on March 10, 2006, appealing a second LEA determination entered by the Department of Education assigning sole fiscal and programmatic responsibility for Student in the instant case to Fall River Public Schools. In the first case, Fall River disputed that it should share responsibility with Franklin Public Schools for Student’s education because according to Fall River, Mother did not live there. Affidavits were obtained from the Parents that clarified the residence status of both Parents, and this newly acquired information was presented to DOE for review of its previous determination. The DOE entered a new determination in March 2006 and it is this determination that is the subject of Fall River’s current appeal.

Administrative notice of BSEA # 06-0659, Fall River’s first appeal, shows that on March 23, 2006, Fall River withdrew its first Hearing Request filed in July 2005, without prejudice.

During a pre-hearing telephone conference call on March 24, 2006, the Parties agreed to proceed to Hearing on April 24, 2006. On April 11th, Fall River Public Schools requested that the Hearing proceed in the form of Oral Arguments supported by a Motion to be filed on the date of Hearing. The request was granted and the hearing proceeded by way of oral arguments and motions on April 24, 2006, in Malden, MA before Hearing Officer Rosa I. Figueroa. Those present for all or part of the proceedings were:

Diane Parent Attorney for Fall River Public Schools

Mary Joanne Reedy Attorney for Franklin Public Schools

Deborah Comfort Attorney for the Department of Education

Benjamin L. Wilson Attorney for Student (Observer)

The official record of the hearing consists of the Fall River Public Schools’ Motion and Memorandum in Support of the Appeal of the Department of Education’s Assignment and documents marked as exhibits E-A through E-F; Franklin Public Schools’ Motion for Summary Judgment as well as the recorded arguments. The Parties opted not to submit closing arguments and therefore, the record closed on Monday April 24, 2006.

ISSUE:

1. Whether the Department of Education’s March 10, 2006 determination that Fall River was fiscally and programmatically responsible for Student in the above- referenced matter was correct. If not,

2. Whether the determination should be reversed and Franklin Public Schools and Fall River Public Schools should be determined to be equally fiscally responsible for Student’s education.

POSITION OF THE PARTIES

Fall River’s Position:

Fall River argued that at the time of Student’s hospitalization, Student lived with Mother in Somerset. Student never actually lived in Fall River prior to entering the pediatric nursing home since she was transferred directly from the hospital to the pediatric nursing home. Somerset was the last location in which Student and Mother resided together. Fall River argued that Mother did not have physical custody of Student on January 4, 2006, prior to its filing the current appeal. The Court in Parents’ divorce proceeding vacated the Temporary Order regarding physical custody of Student on January 4, 2006. Since the change in custody occurred prior to the DOE’s review of Fall River’s request for reconsideration of LEA assignment, then Fall River asserts that Franklin and Fall River share fiscal responsibility for Student’s education. Under the January 2006 court order, parents shared legal custody but neither had physical custody. Therefore, DOE’s determination was incorrect and Fall River is not solely responsible. According to Fall River, DOE should have relied only on 603 CMR 28.10 (3) or (4).

Franklin’s Position:

Franklin Public Schools (Franklin) moved for summary judgment pursuant to Rule VII of The Hearing Rules for Special Education Appeals . Relying on the documents reviewed by the Department Of Education (submitted by Fall River as Exhibits A through F), it stated that the undisputed facts and applicable law support the Department Of Education’s (DOE) conclusions that Fall River bears full responsibility for Student.

DOE’s Position:

The DOE stands by its determination and agrees with the position expressed by Franklin.

FINDINGS OF FACT

· Born on June 22, 1994, Student is an eleven-year old who receives special education services in a pediatric nursing home. (E-A; E-D) She presents with quadriplegia, cerebral palsy, microcephaly, developmental delays, and cortical blindness. (See Fall River’s Motion in Support of Appeal of DOE’s Assignment)

· From 1999 to November 2003 Student lived with both parents in Raynham, MA. (E-B; E-C) Student’s parents separated in November 2003 and divorced in April 2005. (E-A; E-B) After the separation, Father moved to a different location in Raynham, MA. (E-B)

· From December 2003 through March 2004, Student lived with her mother in Somerset, MA. (E-C) In March 2004, Student was hospitalized at the Brockton Hospital. (E-A; E-C)

· Sometime in March 2004, after Student’s hospitalization, Mother moved to Fall River where she resided in two different locations. She lived in the first until September 30, 2005 and then, on October 1, 2005, she moved to a second location in Fall River where she continues to reside to date. (E-A; E-C)

· In April 2004, Student was discharged from Brockton Hospital and was admitted to the Mayflower Pediatric Center in Plymouth, MA. (E-A; E-C)

· Throughout this period and up until December 2004 father lived in Raynham, MA. On December 30, 2004, father moved to Franklin, MA, where he continues to reside. (E-B) Student never resided with Father after November 2003. (E-A; E-B; E-C)

· On April 4, 2005 the Probate and Family Court, Bristol Division, entered a Temporary Order on Parents’ divorce proceeding. (E-A; E-D) This Order incorporates and adopts Parents’ agreement to retain shared legal custody of Student and awards physical custody of Student to Mother. (E-A; E-D) This Order further stated that Father would be solely responsible to complete the application process and discussions with the Crystal Springs facility regarding possible placement of Student there. (E-D) The record does not contain evidence that Student entered this facility.

· On June 29, 2005 the DOE issued Assignment of Responsibility for Special Education Programming regarding Student to Fall River and Franklin. (E-A)

· On January 4, 2006, the Probate and Family Court Judge in Parents’ divorce proceeding issued a new order vacating the previous order issued on April 4, 2005 with respect to physical custody of Student. (E-A; E-E) Under the January 4, 2006 order, Parents continue to share legal custody of Student but no specific order regarding physical custody was entered since “child is in a residential placement facility.” (E-A; E-E)

· Fall River requested review of the DOE’s LEA Assignment of Responsibility for Special Education Programming. (E-F) Fall River alleges that the last time Student actually lived with Mother was when they lived in Somerset, MA, and that Student never actually resided with Mother after that. Student never actually resided with Mother prior to her placement at the Mayflower Nursing Home. (E-F) Fall River argued that the language in 603 C.M.R. 28.10 (8)(c)(5) does not apply in the instant case because Student did not actually live with Mother prior to placement. (E-F) Fall River further argues that Franklin’s and the DOE’s reliance on the aforementioned section of the Regulations is misguided. (E-F)

· On February 10, 2006, the DOE issued a second Assignment of Responsibility for Special Education Program regarding Student, revising its original determination of June 2005. (E-A) Upon consideration of the new information, DOE determined that Fall River was solely responsible for Student’s special education. The DOE stated that under 603 CMR 28.10(3)(a) the responsibility for special education programming for students in a pediatric nursing home rests with the district(s) where parent(s) or the legal guardian reside. DOE further stated that in accordance with section 28.10(8)(a)(4)1 Fall River, the district where Mother, who had physical custody of Student resided at the time Student entered the pediatric nursing home, was the responsible school district pursuant to section 28.10(8)(c) 5. This latter section provides that:

If the student’s parents live in two different school districts, such school districts shall be jointly responsible for fulfilling the requirements of 603 CMR 28.00 except if the student actually resided with either parent immediately prior to going into living situation described in 603 CMR 28.10(3)or (4), or the parents are divorced or separated and one parent has sole physical custody, then the school district where the student resided with the parent or the school district of the parent who has sole physical custody shall be responsible and shall remain responsible in the event the student goes into the care or custody of a state agency. 603 CMR 28.10(8)(c)5.

· Accordingly, the DOE rescinded its June 29, 2005 shared assignment of responsibility between Fall River and Franklin, and assigned sole responsibility to Fall River. (E-A) In its letter the DOE advised Fall River of its right to appeal the DOE’s assignment within 60 days of its notification. ( Id. )

· On March 10, 2006, Fall River filed its second appeal of a DOE determination in this matter to the BSEA.

CONCLUSIONS OF LAW

The Massachusetts Special Education Regulations give the Department of Education authority to resolve issues regarding residency and LEA responsibility for special education students. 603 CMR 28.10. Subsequent appeals of those determinations may be brought before the Bureau of Special Education Appeals. 603 CMR 28.10 (9). While the facts in this case are not in dispute, one of the Parties, Fall River, disagrees with the DOE’s legal conclusions regarding LEA assignment. It this issue which is before me.

Generally, 603 CMR 28.10(3) provides that a school district’s fiscal and or programmatic responsibility for a student is based on the residence of the parent(s)or legal guardian. This section of the regulations states that

The school district where the parent(s) or legal guardian resides shall have both programmatic and financial responsibility under the following circumstances:

1. when student is in a pediatric nursing home…

In applying the above regulation, the DOE initially assigned educational responsibility for Student to both Fall River and Franklin on June 29, 2005. (E-A) Fall River appealed that finding to the BSEA in 2005 and upon receipt of new evidence, the case was sent back to the DOE for a review of its determination. The new information consisted of affidavits submitted by Mother and Father in January 2006, providing clarification as to their whereabouts and legal relationship to Student under a Temporary Order issued in their divorce proceeding. (E-B; E-C) Upon review of the new information, on February 10, 2006, the DOE entered a determination that Fall River was solely responsible for Student’s education.2 Fall River challenged said determination and argued that by January 2006 Mother no longer had physical custody of Student since the Court in Parents’ divorce proceeding had vacated the Temporary Order regarding physical custody on January 4, 2006. The change in custody occurred prior to the DOE’s review of Fall River’s request for reconsideration of LEA assignment. Additionally, Fall River argued that Student lived with Mother in Somerset, MA, when she was hospitalized and that this was the last time student resided with Mother. Fall River does not dispute that Student was moved to the pediatric nursing home in April 2005 or that Mother was then residing in Fall River. According to Fall River, since 603 CMR 28.10(3) addresses the issue of school district responsibility based on residence of the parents in situations where students are in pediatric nursing homes, this regulation is controlling and there is no need to look at any other regulation. Under 603 C.M.R. 28.10 (3), both Fall River and Franklin would share fiscal responsibility for Student. (E-F) Relying on this section, Fall River argues that its responsibility was triggered when Mother contacted the district in the Fall of 2004 and Franklin became responsible when Father moved there on December 30, 2004. (E-F) Fall River ignores the fact that it challenged the DOE’s determination (twice) and that in doing so, it triggered 603 CMR 28.10(8 ) et seq.

Upon review of the pertinent statutes, regulations and case law, as discussed below, I find that Fall River’s arguments are legally incorrect and not persuasive. Fall River bases its whole argument on the physical custody and residency of Student at the time it challenged the DOE’s determination for the second time, that is February 2006, as opposed to looking at the circumstances regarding residency at the time Student entered the pediatric nursing home back in April 2005.

MGL c. 76 §5 assures an individual’s right to attend the public school of the town where that individual resides3 . When addressing residency, the words residence and domicile have been interpreted to be synonymous when used in statutes involving residency requirements. Watson v. Town of Lexington 1993 WL 818774, 1 Mas L. Reptr. 261 (Mass. Super. 1993); See Hershkoff v. Board of Registrars of Voters of Worcester , 366 Mass. 570, 576, 321 N. E. 2d 656 (1974); Teel v. Hamilton Wenham Regional School District , 13 Mass. App. Ct. 345, 349, 433 N.E. 2d 907 (1982). A domicile has been defined as the “place where a person dwells and which is the center of [an individual’s] domestic, social and civil life”, the place where that person has his home4 . Dane v. Board of Registrars of Voters of Concord , 374 Mass. 152, 161-162, 371 N.E. 2d 1358 (1978); Hershkoff v. Board of Registrars of Voters of Worcester , 366 Mass 570 (1974). In this regard, a minor who has not been emancipated is “generally said to lack capacity to acquire such a domicile of choice.” Hershkoff, 366 Mass. at 577. When residence issues involve children, the Court in George H. and Irene L. Walker Home for Children, Inc. v. Franklin , 416 Mass. 291, 296, 621 N.E. 2d 376 (1993) clarified that a minor child’s domicile or residence generally is the same as that of the parent who possesses physical custody of the child. See also, Lydia D. et al. v. Thomas W. Payzant et al. , 17 Mass. L. Rep. 272 (2003); 2003 Mass. Super. LEXIS 471. It is in this context that the DOE’s assignment of fiscal and programmatic responsibility is reviewed.

In the case at bar, Student is an eleven-year-old who has been identified as having special education needs for which she is entitled to receive special education services consistent with the IDEA.

Student’s parents separated in November 2003, at which time Father moved out of the couple’s home. Student never resided with Father after November 2003. (E-A; E-B; E-C) In March 2004, while Student was residing with her mother in Somerset, MA, Student required a hospitalization at Brockton Hospital. (E-A; E-C; E-D) Sometime in March 2004, while Student was hospitalized, Mother moved to Fall River, MA. In April 2004, Student was transferred from Brockton Hospital to the Mayflower Nursing Home where she remains to date. (E-A; E-C; E-F) Between March of 2004 and the present time, Mother has lived at two different locations in Fall River. (E-A; E-C)

On April 4, 2005, the Bristol Division of the Probate and Family Court, issued a Temporary Order in Parents’ divorce proceeding awarding full physical custody of Student to Mother. (E-A; E-D) This Order was modified on January 4, 2006 when the Court maintained shared legal custody of Student with Parents but did not enter any specific order regarding her physical custody because “child [was] in a residential placement facility.” (E-A; E-E) On February 10, 2006, having been presented with the aforementioned information, the DOE entered a determination assigning sole fiscal and programmatic responsibility for Student’s education to Fall River.

603 CMR 28.10(8) describing Department Assignment of School District Responsibility allows the DOE to assign a city, town, or school district to be responsible for students in living situations described in 603 CMR 28.10(3)5 when among others, “the residence or residential history of the student’s parent(s) or legal guardian is in dispute;….” 603 CMR 28.10(8)(a)2. Furthermore, when assigning a city, town, or school district responsibility for a student in a living situation described in 603 CMR 28.10(3) or (4), another regulation, 603 CMR 28.10(8)(c) specifically directs the DOE to use certain prescribed criteria. When considering the facts in the instant case, as stated supra , it is clear that 603 CMR 28.10(8)(c)5 provides the pertinent language, as correctly applied by the DOE in its determination of February 2006. Specifically, this section of the Regulations states that,

5. If the student’s parents live in two different school districts, such
school districts shall be jointly responsible for fulfilling the requirements of 603 CMR 28.00 except if the student actually resided with either parent immediately prior to going into living situation described in 603 CMR 28.10(3)or (4), or the parents are divorced or separated and one parent has sole physical custody, then the school district where the student resided with the parent or the school district of the parent who has sole physical custody shall be responsible and shall remain responsible in the event the student goes into the care or custody of a state agency. 603 CMR 28.10(8)(c)5.

Here, Student had not only been residing solely with Mother at the time of her hospitalization and subsequent transfer to the pediatric nursing home (Mayflower Nursing Home) but the facts also suggest that the Court Order of April 4, 2005, awarding Mother sole physical custody of Student, may have been in effect at the time Student entered the Mayflower Nursing Home. (E-A; E-B; E-C; E-D) Except for the actual date on which Student entered the pediatric nursing home, which was not provided by any of the Parties, the facts in this case are uncontested and supported by the evidence. Furthermore, 603 CMR 28.10(8)(c)5 only requires that one of the two criteria occur, that is, that Student reside with one parent immediately before entering the pediatric nursing home or that one parent have sole physical custody. Franklin correctly argues that a hospital cannot be deemed a residence or domicile under any legal theory. Since Student is a minor, for purposes of ascertaining residency, under Walker , she would have been deemed to reside with a parent. The evidence is undisputed that Student was residing with Mother when she entered Brockton Hospital (which does not constitute a shift in residence as a temporary hospitalization does not change a person’s domicile or residence) prior to entering the Mayflower Nursing Home. Student’s domicile was where the parent with Student’s physical custody, that is, Mother, lived.

In its request for summary judgment, Franklin correctly argues additional points. Franklin states that actual residence means domicile, and an individual may only have one domicile at a time. A temporary hospitalization does not change a person’s residence or domicile and therefore, Student’s residence became Fall River, when Mother moved there in March 2004, before Student entered the pediatric nursing home. Franklin therefore, correctly argues that in the case at bar 603 CMR 28.10 (8)(c)(5) is determinative of school district responsibility. Since the criteria provided in subsection (8)(c)(5) creates an exception in cases where students were actually residing with either parent immediately prior to going into a pediatric nursing home situation, as in this case, or the parents are divorced or separated and one parent has sole physical custody, then the exception is controlling. Under subsection (8)(c)(5), Fall River, Mother’s place of residence/domicile, is solely responsible.

Therefore, where a dispute exists regarding the residence or residential history of a student’s parent/s, as in the instant case, where those parents reside in different communities, and where the student resided with one parent who had physical custody, then, the school district of the parent with whom Student resided is solely responsible for his/ her educational needs. The February 10, 2006 determination of the DOE is upheld, and Franklin’s Motion for Summary Judgment is GRANTED.

ORDER:

1. Fall River, the community where Student “actually” resided as a matter of law, immediately prior to admission to the pediatric nursing home, bears full fiscal and programmatic responsibility for Student’s special education program consistent with the DOE’s determination of February 2006.

2. Franklin’s Motion for Summary Judgment is GRANTED.

So Ordered by the Hearing Officer,

_____________________________________

Rosa I. Figueroa

Dated: May12, 2006

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

EFFECT OF BUREAU DECISION AND RIGHTS OF APPEAL

Effect of the Decision

20 U.S.C. s. 1415(i)(1)(B) requires that a decision of the Bureau of Special Education Appeals be final and subject to no further agency review. Accordingly, the Bureau cannot permit motions to reconsider or to re-open a Bureau decision once it is issued. Bureau decisions are final decisions subject only to judicial review.

Except as set forth below, the final decision of the Bureau must be implemented immediately. Pursuant to M.G.L. c. 30A, s. 14(3), appeal of the decision does not operate as a stay. Rather, a party seeking to stay the decision of the Bureau must obtain such stay from the court having jurisdiction over the party’s appeal.

Under the provisions of 20 U.S.C. s. 1415(j), “unless the State or local education agency and the parents otherwise agree, the child shall remain in the then-current educational placement,” during the pendency of any judicial appeal of the Bureau decision, unless the child is seeking initial admission to a public school, in which case “with the consent of the parents, the child shall be placed in the public school program”. Therefore, where the Bureau has ordered the public school to place the child in a new placement, and the parents or guardian agree with that order, the public school shall immediately implement the placement ordered by the Bureau. School Committee of Burlington, v. Massachusetts Department of Education , 471 U.S. 359 (1985). Otherwise, a party seeking to change the child’s placement during the pendency of judicial proceedings must seek a preliminary injunction ordering such a change in placement from the court having jurisdiction over the appeal. Honig v. Doe , 484 U.S. 305 (1988); Doe v. Brookline , 722 F.2d 910 (1st Cir. 1983).

Compliance

A party contending that a Bureau of Special Education Appeals decision is not being implemented may file a motion with the Bureau of Special Education Appeals contending that the decision is not being implemented and setting out the areas of non-compliance. The Hearing Officer may convene a hearing at which the scope of the inquiry shall be limited to the facts on the issue of compliance, facts of such a nature as to excuse performance, and facts bearing on a remedy. Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief, including referral of the matter to the Legal Office of the Department of Education or other office for appropriate enforcement action. 603 CMR 28.08(6)(b).

Rights of Appeal

Any party aggrieved by a decision of the Bureau of Special Education Appeals may file a complaint in the state superior court of competent jurisdiction or in the District Court of the United States for Massachusetts, for review of the Bureau decision. 20 U.S.C. s. 1415(i)(2).

An appeal of a Bureau decision to state superior court or to federal district court must be filed within ninety (90) days from the date of the decision. 20 U.S.C. s. 1415(i)(2)(B).

Confidentiality

In order to preserve the confidentiality of the student involved in these proceedings, when an appeal is taken to superior court or to federal district court, the parties are strongly urged to file the complaint without identifying the true name of the parents or the child, and to move that all exhibits, including the transcript of the hearing before the Bureau of Special Education Appeals, be impounded by the court. See Webster Grove School District v. Pulitzer Publishing Company , 898 F.2d 1371 (8th Cir. 1990). If the appealing party does not seek to impound the documents, the Bureau of Special Education Appeals, through the Attorney General’s Office, may move to impound the documents.

Record of the Hearing

The Bureau of Special Education Appeals will provide an electronic verbatim record of the hearing to any party, free of charge, upon receipt of a written request. Pursuant to federal law, upon receipt of a written request from any party, the Bureau of Special Education Appeals will arrange for and provide a certified written transcription of the entire proceedings by a certified court reporter, free of charge.


1

“The Department may assign or a school district or agency may request the Department’s assistance in assigning a city, town or school district to be responsible for students in living situations described in 603 CMR 28.10(3) or (4)… when a student has not yet been determined to be eligible and /or is not receiving services…603 CMR 28.10(8)(a)(4) and 28.10(8)(a)(4).


2

Fall River withdrew its first request for Hearing to the BSEA in February 2006 at approximately the same time that it requested this Hearing challenging the new determination.


3

“[E]very person shall have a right to attend the public school of the town where he actually resides….”


4

Restatement (Second ) of Conflicts of Laws § 11 comment a (1971). George H. and Irene L. Walker Home for Children, Inc. v. Town of Franklin , 416 Mass. 291, 296, 621 N.E. 2d 376 (1993).


5

As referenced in page 5 of this decision, section 28.10(3)(a) of the Regulations involves school district responsibility for students who are in a pediatric nursing home.


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