COMMONWEALTH OF MASSACHUSETTS
Bureau of Special Education Appeals
In Re: Felice1 & Holyoke Public Schools
BSEA #06-5994
Ruling on Motion For Summary Judgment
This matter comes before the Bureau of Special Education Appeals on the Motion of the Educational Surrogate Parent to Join the Massachusetts Department of Education (hereinafter “DOE”) and for Summary Judgment. Both the Holyoke Public Schools (hereinafter “Holyoke”) and the DOE filed cross-motions for Summary Judgment. A Motion Hearing was held on September 21, 2006. The parties agreed that no facts were in dispute and that Summary Judgment was an appropriate vehicle for resolving the sole remaining claim of the Educational Surrogate Parent. That claim concerns the eligibility criteria and spheres of responsibility for the Educational Surrogate Parent program in Massachusetts.
As the issue presented to the Bureau involves a DOE operated program, and DOE submitted a brief on that discrete legal issue, joinder was deemed appropriate and necessary pursuant to BSEA Rule 1F and 603 CMR 28.08(3). The Educational Surrogate Parent’s Motion to Join was therefore granted for the purpose of resolving the parties’ Summary Judgment motions.
Factual Background
The pertinent facts are few, and are not in dispute:
1. Throughout the 2005-2006 school year Felice was a regular education student. She attended the 6 th grade in an alternative education program within the Holyoke Public Schools.
2. At all times during the 2005-2006 school year Felice was in the custody of her parents, whose identity and location were known to Holyoke Public Schools.
3. Felice exhibited repeated instances of aggression and other behavioral disturbances in the alternative education program. Holyoke sought parental consent for an initial special education evaluation by sending a consent form to the Student’s address of record by regular mail and certified mail, and by sending an outreach worker to the home. Although the “green card” indicating receipt of the consent form at the Student’s address was returned to the school, Holyoke never received written parental consent to conduct a special education evaluation for Felice. After three documented attempts to secure parental consent to the proposed initial special education evaluation Holyoke placed its request and responses in an administrative “dead” file.
4. In December 2005, Holyoke conducted a Functional Behavioral Evaluation. In January 2006, Holyoke conducted a “Risk Assessment”. Holyoke then filed a “CHINS” Habitual Offender Petition in the Hampden County Juvenile Court. On April 6, 2006 the court appointed Bryan Clausen as Felice’s Guardian ad Litem/Education Surrogate Parent.
5. Holyoke did not request the DOE to appoint an educational surrogate parent for Felice at any time. DOE has never appointed an educational surrogate parent for Felice.
6. Holyoke secured actual parental consent to its request for an initial special education evaluation during the summer of 2006.
Issue
Broadly, the legal issue articulated by the Educational Surrogate Parent, and addressed in responses by Holyoke and the DOE, is whether Holyoke and the DOE have an unlawful policy of failing to appoint Educational Surrogate Parents for students, such as Felice, who may be denied a free, appropriate public education as a result of the action or inaction of their parents. More particularly the issue can be stated: Whether the DOE’s practice limiting the appointment of educational surrogate parents to students who are in state custody or whose parents are unknown or unable to be located, is inconsistent with the IDEA?
Legal Framework
The IDEA requires each state educational agency to have a procedure that ensures that every child with a disability has a parent-figure available to advocate on his or her
behalf in special education matters. 20 U. S. C. 1415 (b) (2). The federal regulations governing this matter state:
Surrogate Parents:
(a) General . Each public agency must ensure that the rights of a child are protected when-
1. No parent (as identified in § 300.20) can be identified;
2. The public agency, after reasonable efforts, cannot discover the whereabouts of a parent;
3. The child is a ward of the State under the laws of that State.
34 CFR § 300.515 (a).2
When one or more of those conditions are met, the “public agency” is charged with assigning an individual to act as a surrogate parent on the student’s behalf. 34 CFR § 300.515 (b). Although the term “public agency” as used in the federal regulations can include the responsible local school district (See 34 CFR 300.33), Massachusetts has developed a state-level process for assigning surrogate parents to students who meet the federal criteria. Unlike other sections such as “child find” or “discipline” the federal statutory and regulatory sections concerning surrogate parents contain no mandatory language targeted directly at the local education agency. Thus Massachusetts is free to develop and implement a surrogate parent program that operates at the state level. While involvement of the local education agency is permitted and, in most cases, desirable, vesting control of the surrogate parent program in the state education agency as Massachusetts has done does not contradict the plain language of the IDEA.
Although the Massachusetts special education regulations do not prescribe the parameters or process of the educational surrogate parent program administered by the DOE, they do occasionally reference the federal requirement that such a program exist. For example, the term “parent” is defined as:
Parent shall mean father, mother, guardian, person acting as a parent of the child, or an educational surrogate parent appointed in accordance with federal law . (Emphasis added).
603 CMR § 20.02[15].
Furthermore, the regulatory section that directly addresses the surrogate parent program limits the responsibility of the local school district to responding to a request from the state to identify an individual willing and able to act as an educational surrogate parent for a child determined by the state to be eligible for one, and to reimbursing the surrogate for expenses incurred as a result of that role.3
The documents developed by the DOE to provide guidance to the public and other state agencies about the educational surrogate parent program correctly summarize the federal law. In its advisory titled “Guidance on Appointment of Educational Surrogate Parents” dated November 4, 2005, issued jointly with the Department of Social Services, the DOE states that DOE will appoint a surrogate parent whenever a student with a disability is in the custody of a state agency, or the student’s parent or guardian cannot be identified or located. The DOE policy on appointment of educational surrogate parents is also contained in a policy advisory “Educational Services in Institutional Settings” issued in October 2005: students placed in the care or custody of the Commonwealth of Massachusetts or students whose parents are unknown, unavailable, or have lost their right to make educational decisions based on a court decision are eligible to have an Educational Surrogate Parent appointed.
Finally, “The Notice of Procedural Safeguards”, which is designed for parents to read and is distributed to parents at critical junctures in the IEP planning process, states:
“ If a child is in the custody of a state agency, the Department of Education has a responsibility to ensure there is an adult with no conflicting interests to make special education decisions on behalf of the child.”
Parent’s Exhibit 1 at 2. This language is entirely consistent with IDEA requirements. See 34 C.F.R. § 300.515 (a)(3) (ESP must be appointed when the “child is a ward of the State under the laws of that State”).
Conclusion
After careful review of the relevant statutes and regulations, as well as the program descriptions developed by the DOE, I conclude that the Massachusetts Educational Surrogate Parent Program conforms to the requirements of federal law. There is no indication in federal or state law that the LEA has any duty to initiate a referral to that program in circumstances other than those enumerated in 34 CFR § 300.515 (2), nor any responsibility or capacity to assign its own educational surrogate parent to any student.
In this matter the parties agree that Felice is not now, nor has she ever been, in state custody. They also agree that Holyoke knew the identity of Felice’s parents and knew also where they lived. Indeed Holyoke has evidence that Felice’s parents received multiple requests for their consent to an initial special education evaluation. These facts exclude Felice from the educational surrogate program operated by DOE which is available only to students whose parental ties are unknown, terminated or lost. While this result may be frustrating, it does meet federal surrogate parent program standards.
I note that it also conforms to Massachusetts’ law concerning initial special education evaluations. Massachusetts special education regulations allow parents to veto a school proposal for an initial special education evaluation. 603 CMR 28.04 (2); 603 CMR 28.08 (3)(c). The local school district may not appeal a parent’s decision to refuse an initial special education evaluation requested by the school. The Bureau of Special Education Appeals may not override a parent’s lack of consent to an initial special education evaluation. In the same vein the Surrogate Parent Program operated by the DOE cannot be used as a tool to circumvent a parent’s refusal to consent to an initial special education evaluation when that parent retains legal decision making authority for her or his minor child. Only a court, having made the appropriate factual findings concerning the family, has the authority to limit parental rights and to appoint a substitute decision maker to act in the child’s best interest. That is precisely what was done here. Felice’s court-appointed educational surrogate parent argues that the DOE-operated ESP program should be expanded to include situations in which the parent, though known and available, is not acting in the student’s best educational interests. As there is currently no requirement under federal or state law that the ESP program address those circumstances, that argument is one of policy more properly directed to the DOE than to the BSEA.
Having found that the ESP program operated by the DOE is consistent with federal and state law, and having further found that Holyoke acted in a manner consistent with its responsibilities with regard to the ESP program, I conclude that Felice’s Educational Surrogate Parent has failed to demonstrate an essential element of this case-the legal entitlement to the relief requested. There being no set of inferences that could be reasonably derived from the undisputed facts which could support the ESP’s claims, nor any legal ambiguities that could be resolved in the ESP’s favor, the ESP’s Motion for Summary Judgment must be denied, and the Cross-Motions for Summary Judgment filed by Holyoke ad DOE are entitled to be granted.
Order
Based on the conclusions reached above the following Orders are entered:
1. The Motion of the Educational Surrogate Parent for Summary Judgment is DENIED;
2. The Motion of the Holyoke Public Schools for Summary Judgment is GRANTED;
3. The Motion of the Massachusetts Department of Education for Summary Judgment is GRANTED.
October 12, 2006
Lindsay Byrne, Hearing Officer
1
“Felice” is a pseudonym chosen by the Hearing Officer to protect the privacy of the Student in publicly available documents.
2
The new IDEA regulations, including Section 300.519, which addresses Surrogate Parents, did not go into effect until October of 2006 and, therefore, are not applicable to this case. The new regulation is not substantively different from the one cited above, except for a requirement to appoint an ESP to “unaccompanied homeless youth.”
3
603 CMR 28.07 (7) provides: Educational surrogate parent-District responsibility. When a student is without parental representation and requires an educational surrogate parent to be appointed in accordance with federal law and regulations, the Department may request assistance from the district responsible for services to the student in identifying a person willing to serve as an educational surrogate parent.
1. Upon assignment by the Department such educational surrogate parent shall have all the rights and responsibilities of a parent in making decisions regarding eligibility and services for special education for the assigned student. The Department shall provide notice of appointment to the school district and any state agency with custody of the student.
2. A person identified by the district and willing to serve as an educational surrogate parent shall have no conflict of interest and shall not be in the employ of the school district or any state or local agencies involved with the care of the student.
3. A person identified by the district, appointed by the Department, and serving as an educational surrogate parent shall not receive financial remuneration from the district except that the school district shall reimburse the person for reasonable expenses related to the exercise of his or her responsibilities as an educational surrogate for a student enrolled in the district.