Fitchburg Public Schools – BSEA #02-0038



<br /> Fitchburg Public Schools – BSEA #02-0038<br />

COMMONWEALTH OF MASSACHUSETTS

Bureau of Special Education Appeals

Re: Fitchburg Public Schools

BSEA# 02-0038

Ruling on Motion to Join

This matter comes before the Bureau on the Motion of the Fitchburg Public Schools to Join the Department of Mental Retardation and the Leominster Public Schools in this special education appeal. Neither the Student nor the Leominster Public Schools opposed the Motion to Join.1 The Department of Mental Retardation submitted a written opposition to the Joinder Motion. A pre-hearing conference was held on May 1, 2002, at which oral arguments on the Motion and Opposition were heard.

Factual Background

The operative facts may be briefly summarized:

The Student is nineteen years old. She has longstanding multiple disabilities that interfere with learning, including significant behavioral difficulties, a communication impairment and mental retardation. She has attended a substantially separate prevocational /life skills day program through the Merrimac Educational Collaborative for the past five years.

In December, 2001, the Student and her mother rejected the Individualized Education Plan proposed by Fitchburg and requested a hearing. The proposed IEP calls for the Student to continue to attend a day program through the Merrimac Educational Collaborative (hereinafter “MEC”). The Student asserted that a residential educational placement providing consistent behavioral and educational intervention and carryover is necessary to constitute an appropriately tailored educational program for her.

In February, 2002, the Student’s mother became homeless. The Student was placed in a temporary, emergency respite group home operated by the Department of Mental Retardation (hereinafter “DMR”). The respite care facility is located in Fitchburg. The Student continued to attend her program at MEC. A temporary guardian, with educational decision making rights, was appointed for the Student. The guardian supports the Student’s earlier request for twenty-four hour educational programming. The Student was found generally eligible for adult services through DMR on April 1, 2002.

Legal Framework

By statute and regulation the Bureau of Special Education Appeals has been explicitly granted the authority to join state agencies as parties to a special education appeal in order to ensure that each eligible student receives the free, appropriate public education guaranteed under 20 U.S.C. § 1401 et seq. and M.G.L. c. 71B. Chapter 159, section 162 of the Acts of 2000 , amending MGL c. 71B, S.3 (hereinafter, Section 162) states:

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, 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.

See also: 603 CMR 28.08(3) and 34 C.F.R. 300.142(a). Consistent with basic principles of equity and civil procedure, a state agency may be joined in an action at the Bureau of Special Education Appeals when complete relief cannot be afforded to the moving party in its absence. BSEA Rule 1F provides:

Upon written request of a party, a Hearing Officer may allow for the joinder of a person in cases where complete relief cannot be granted among those who are already parties, or the person 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 their absence. Factors 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.

In special education appeals the joinder inquiry will necessarily focus on whether a free, appropriate public education can be developed, delivered, declared or guaranteed without the participation of the state agency sought to be joined. If it cannot, joinder will be allowed.

Arguments

School: The School argues that DMR should be joined in this action because the Student cannot be guaranteed a free, appropriate public education without DMR’s involvement in service coordination and delivery to the Student. Fitchburg claims that the Student is making effective progress in the MEC placement, and requires a stable residential environment with individuals trained to supervise and support young adults with needs similar to the Student’s in order to maintain the level of the educational progress the Student is achieving at MEC. The School points out that MEC is the least restrictive educational option available to the Student. To ensure that the Student receives her education in the least restrictive environment, as preferred by federal and state law, the Student must have a stable, supportive residence within reasonable geographic proximity to MEC. The DMR, as the adult service agency responsible for the Student, has an obligation to provide the supports, including a residence, that are necessary to permit the adult Student to participate in and benefit from the least restrictive, appropriate special education program available to her.

DMR: The DMR argued that it is not subject to joinder by the BSEA in an administrative appeal as it has no obligation to provide services to any individual between the ages of 18 and 22. In particular, the DMR contends that the BSEA lacks jurisdiction to order the DMR to provide any discrete service to any individual as to do so would contravene established case law. See : In the matter of McNight , 406 Mass. 787 at 798 (1990); and Charrier v. Charner , 416 Mass 105 (1993). The DMR asserted that only local school districts have responsibility for providing comprehensive services to 18-22 year old students eligible for special education. In this case in particular, the DMR argued, the Student either needs residential services for educational reasons, or because she is homeless. In either scenario, according to the DMR, the local school district should be responsible for securing a residence for the Student.

Finally the DMR challenged the impartiality of BSEA Hearing Officers, contending that because Hearing Officers are employed by the Department of Education there is an inherent incentive to enter orders adverse to other state agencies.

Student : The Student takes the position that joinder of the DMR would assist the Hearing Officer in securing all pertinent evidence and in ensuring that the Student receives an appropriately tailored special education program in the least restrictive environment.

Conclusion

After careful consideration of the uncontroverted facts and of the arguments of counsel for the School, the Student, and the DMR, it is my determination that the School’s Motion to Join the DMR should be GRANTED. The essential facts of this matter are similar to those presented last year to Hearing Officer Crane in Medford Public Schools . See 7 MSER 75 (2001). The arguments DMR raised here in opposition to joinder are identical to those thoughtfully considered and rejected by the Hearing Officer in Medford2 . The resulting legal analysis is indistinguishable. There has been no change in the applicable law between issuance of the Medford decision in May, 2001, and today. Nor did the DMR point to any fact or facts which so distinguish this matter from the situation presented to the Hearing Officer in Medford as to compel a different result. I am persuaded that the analysis set out in Medford is both good and applicable here. I therefore adopt the reasoning of the Hearing Officer in Medford and find that DMR can be compelled to participate in a special education due process proceeding that concerns a nineteen year old with mental retardation.

In the instant case, the DMR may, as Fitchburg argues, be responsible for providing “additional services”3 that would permit this Student to benefit from a special education program in the least restrictive environment. These services, consistent with the DMR’s authorizing statues, may include: habilitation, vocational, educational, community and residential services and supports.4 Whether some, all, or none of these services is necessary or appropriate to support the Student’s special education program cannot be determined until after a full evidentiary hearing. I am convinced that a complete examination of the Student’s educational needs, and a comprehensive declaration of her entitlement to a free appropriate public education in the least restrictive setting, cannot be achieved in the absence of the meaningful participation in this hearing by the DMR. Therefore I find that Joinder of the DMR in this matter is proper under BSEA Rule 1F, and consistent with the standards set out at 603 CMR 28.08 (3) and the jurisdictional grant of M.G.L. c. 71B § 162.

Finally I turn briefly to the DMR’s argument, advanced for the first time in the Motion Hearing, that BSEA Hearing Officers are inherently biased against “other” state agencies due to their employment by the Department of Education. I reject this argument and specifically find no personal or institutional bias as a result of this interesting employment status. First I note that both federal and state regulators have considered the employment arrangement of special education appeal Hearing Officers on multiple occasions over the past twenty-five years and have uniformly concluded that it is consistent with the requirements of all applicable conflict-of-interest regulations. See e.g. 34 C.F.R. § 300.508. Unlike many other state agencies, the Department of Education has no authority to review Hearing Officers decisions, no discretion but to implement them and no input into the supervision of individual Hearing Officers. There are no personal or professional consequences to any Hearing Officer as a result of any decision made on requests to join additional parties to a special education appeal. Therefore I find no reasonable basis for DMR’s claim of bias in the assertion of BSEA jurisdiction over the DMR pursuant to M.G.L. c. 71B § 162.

Order

Fitchburg’s Motion to Join the Department of Mental Retardation is GRANTED . The Parties shall submit a written status update no later than May

20, 2002, including proposed dates for hearing in July, 2002.

By the Hearing Officer,

___________________________

Lindsay Byrne,


1

Due to new information presented to the participants at the pre-hearing conference, a ruling on the request to join the Leominster Public Schools will be held in abeyance at this time.


2

See in particular 7 MSER 83, 84, 88 (2001)


3

M.G.L. c. 71B § 162.


4

M.G.L. c. 123B.2; M.G.L. c 19B.13 See also In Re : Whitman –Hanson R.S.D. , BSEA # 01-4866, Sept. 28, 2001; Greater Lawrence R.S.D. , 5 MSER 112 (1999).


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