Fitchburg Public Schools, Narragansett Regional School District, and Massachusetts Department of Elementary and Secondary Education – BSEA # 12-3434



<br /> Fitchburg Public Schools, Narragansett Regional School District, and Massachusetts Department of Elementary and Secondary Education – BSEA # 12-3434<br />

COMMONWEALTH OF MASSACHUSETTS

Division of Administrative Law Appeals

Bureau of Special Education Appeals

In Re: Fitchburg Public Schools, Narragansett Regional School District, and Massachusetts Department of Elementary and Secondary Education

BSEA # 12-3434

DECISION

This decision is issued pursuant to the state special education law (MGL c. 71B), the state Administrative Procedure Act (MGL c. 30A), the regulations promulgated under these statutes, and 603 CMR 28.10(9) which provides explicit regulatory authority for the Bureau of Special Education Appeals (BSEA) to resolve this dispute.

By agreement of the parties and pursuant to BSEA Hearing Rule XII, this matter is decided solely on the basis of documents that have been filed by the parties. The parties filed exhibits and written arguments on January 9, 2012. A hearing was held on January 23, 2012 in Malden, MA for purposes of making oral arguments, and the record closed on that date.

Exhibits submitted by the parties included an Advisory (and Addendum) of the Massachusetts Department of Elementary and Secondary Education (DESE) submitted by Fitchburg Public Schools and DESE, and four exhibits submitted by Narragansett Regional School District marked as exhibits 1 through 4. There was no objection to my consideration of the DESE Advisory (and Addendum) and the Narragansett exhibits, and I therefore do so.1

ISSUE

The issue to be decided in this case is whether DESE’s assignment of school district responsibility, by letter dated September 22, 2011, is correct?

FACTS

The following facts are not in dispute.

For purposes of my determination of the responsible school district, the only relevant parent is Mother. At all times relevant to this dispute, Mother has resided in Baldwinville, MA. Baldwinville is within the Narragansett Regional School District. Exhibit 4.

At all times relevant to this dispute, Student has been under the custody of the Massachusetts Department of Children and Families (DCF). Exhibit 4.

From 2002 through September 27, 2010, Student lived with her Mother in Baldwinville. As explained more fully immediately below, from September 28, 2010 through the present, Student lived in a series of foster homes, and thereafter lived at the Horizon House and finally at Devereaux. Exhibit 4.

On or about September 28, 2010, DCF placed Student into a foster home in Gardner, MA. Gardner is not within the Narragansett Regional School District. Exhibit 4.

On or about November 24, 2010, DCF placed Student in a foster home in Fitchburg, MA. Fitchburg is not within the Narragansett Regional School District. Exhibit 4.

On or about January 10, 2011, DCF placed Student in a second foster home in Fitchburg. Exhibit 4.

On or about February 27, 2011, DCF placed Student at the Horizon House, which is a Stabilization, Assessment and Rapid Reintegration/Reunification (STARR) placement located in Fitchburg, MA. Exhibit 4.

Student then enrolled in the Fitchburg Public Schools, which determined Student to be eligible for special education services. Fitchburg wrote an IEP for the period March 7, 2011 to March 7, 2012. Parent accepted this IEP in full. Pursuant to this IEP, Student was placed at the McGrath School, which is a private, DESE-approved day school. Student has continued to attend the McGrath School through the present. Exhibits 3, 4.

On or about April 20, 2011, DCF placed Student in Devereaux, which is a group home in Rutland, MA. Rutland is within the Wachusett Regional School District. Exhibit 4.

On or about September 1, 2011, DCF filed with DESE a Request for Clarification of School District Responsibility. On September 22, 2011, DESE issued its responsive letter, finding as follows:

· Because Student is residing at a group home within the Wachusett Regional School District, Wachusett is programmatically responsible for Student’s education.

· On the basis of the Massachusetts move-in law (MGL c. 71B, s. 5), Fitchburg is financially responsible for Student’s education through June 30, 2012.

· Narragansett becomes financially responsible as of July 1, 2012. [Exhibit 2.]

On November 21, 2012, Fitchburg filed its Hearing Request with the BSEA, contesting DESE’s assignment letter of September 22, 2011 and taking the position that, on the basis of Mother’s residence, Narragansett is financially responsible for Student’s education at all times relevant to this dispute.

DISCUSSION

In Walker Home for Children, Inc. v. Franklin , the Massachusetts Supreme Judicial Court (SJC) held that pursuant to MGL c. 71B, assignment of the responsible school district is determined on the basis of the student’s residence .2 The Court further noted that the student’s residence “generally is the same as the domicil [sic] of the parent who has physical custody of the child.”3

However, the SJC has further clarified that “ [w]hile the residence of a child is typically the same as that of the parent who has physical custody of the child . . . the phrase ‘residing therein’ in G.L. c. 71B, § 3, is not so obviously self-defining when considerations such as split families, guardianships, children living with foster parents, relatives or friends, and institutionalized children enter the picture.”4 Recognizing the need for further clarification, the SJC has made clear that DESE “has been given the authority to adopt regulations addressed to resolving the issue of residence in situations in which a child’s legal residence may be in some doubt.”5

Pursuant to these DESE regulations, Narragansett’s and Fitchburg’s responsibility to pay for Student’s education may depend on whether she was appropriately considered homeless. I therefore first consider DESE Advisories regarding homeless students and then discuss the DESE regulations governing school district responsibility.

To assist school districts in implementing the McKinney-Vento Homeless Assistance Act, 42 U.S.C. § 11431 et seq. (McKinney-Vento), DESE has issued a series of Advisories which contain detailed guidance on McKinney-Vento policies and procedures, including standards and a process for determining which students should be considered homeless.

One such Advisory (the Homeless Education Advisory 2004-9 ) provides guidance regarding the identification of homeless students who are in the care or custody of the state (such as DCF). This Advisory explains:

Massachusetts Department of Elementary and Secondary Education has determined that children and youth in state care or custody who have been placed out of their homes into temporary, transitional, or emergency living placements are awaiting foster care placement and therefore homeless . This would include students living in programs referred to as “shelters,” “hotline homes,” “bridge” homes, and diagnostic placements since such programs, by design, provide temporary, transitional or emergency housing. Additionally, there may be other instances in which children may be placed in residences that are not temporary by design (for example, a foster home used as a short term placement) but are emergency, transitional, or temporary placements for the child in question. [Emphasis supplied.]6

More recently, DESE amended this Advisory because of “design changes to the system that provides children and youth who are in the care or custody of the Department of Social Services (DSS) [now named the Department of Children and Families or DCF] with short-term temporary, transitional or emergency housing.” The Advisory Addendum explains:

Stabilization, Assessment and Rapid Reintegration/Reunification (STARR) Programs are short-term placements that have replaced the temporary, transitional, or emergency housing previously provided by “bridge” homes, diagnostic assessment centers, and shelters. As a result, placements in STARR Programs , both latency and adolescent, are considered temporary, transitional, or emergency homeless housing under the McKinney-Vento Homeless Assistance Act . [Emphasis supplied.]7

It is not disputed that Student attended a STARR program (specifically, the Horizon House) from approximately February 27, 2011 to approximately April 20, 2011. The above-referenced homeless Advisories make clear that simply as a result of attending the STARR program, Student met the DESE criteria for being homeless during this time period. Whether or not a student is homeless is relevant to a determination of the responsibility of a school district, as will be discussed below. Although not directly relevant to the instant dispute, I also note that whether or not a student is homeless may affect the rights of the student.8

Through its regulations, again in accordance with McKinney-Vento , DESE has provided the following operative legal standards within its special education regulations relevant to school district responsibility for a student who is considered homeless :

The school district(s) that was programmatically and financially responsible prior to the student becoming homeless shall remain programmatically and financially responsible for a homeless student until the parent(s) or legal guardian or state agency with care or custody of the student chooses to enroll the student in the school district where the shelter or temporary residence is located.9 [Emphasis supplied.]

Fitchburg was programmatically and financially responsible for Student immediately prior to her entering the STARR program because Student had been placed by DCF in a foster home located in Fitchburg. See 603 CMR 29.10(2)(c) (“The school district where the student resides shall have both programmatic and financial responsibility … [w]hen students have been placed or are funded by the Department of Children and Families in a foster home located within Massachusetts.”). Fitchburg assumed this responsibility while Student was at the STARR program by determining Student to be eligible for special education services and writing an IEP (that was fully accepted by Mother) placing Student at the McGrath School.

In summary, according to the above-referenced Homeless Education Advisory 2004-9 and Homeless Education Advisory 2007-9A (amending the earlier Advisory ) and the above-referenced DESE regulations, Student was homeless while attending the STARR program, and she was therefore the financial responsibility of Fitchburg during this period of time.

Fitchburg disputes this conclusion for several reasons. First, Fitchburg takes the position that the DESE Advisories and regulations regarding homeless students need not (and should not) be considered in determining school district responsibility in the instant dispute. Fitchburg bases its argument on the proposition that the STARR program that Student attended falls squarely within the regulatory language of a “ residence or crisis or respite facility funded or supervised by a state agency”, as appears in DESE regulation 603 CMR 28.10(4). The argument continues that for any student residing in one of these programs, the DESE regulations provide that the “school district where the parent(s) or legal guardian resides” is financially responsible for “an out-of-district program”.10 It is not disputed that at all times relevant to this dispute, Parent has resided within the Narragansett Regional School District. Therefore, pursuant to these regulatory standards, Fitchburg argues that Narragansett (not Fitchburg) bears financial responsibility for Student’s educational program at the McGrath School while she attended the STARR program.

In sum, Fitchburg’s position is that the above-quoted regulatory language, as applied to the instant dispute, is clear on its face. Therefore, this language must govern school district responsibility, and, accordingly, there is no reason to look further—for example, to a DESE Advisory or regulatory language relative to homeless students.

In interpreting a regulation, the words of a regulation must be read in their context and with a view to their place in the overall regulatory scheme.11 I agree with DESE’s position that when the overall regulatory scheme is considered, the homeless standards within the school district responsibility regulations serve as an exception to the more general standards found within earlier parts of the same regulations—as a result, the general standard (relied upon by Fitchburg) and the homeless exception need to be read in tandem. In other words, even though Fitchburg may, arguably, be correct that the STARR program Student attended may fit within the general regulatory standard pertaining to a “ residence or crisis or respite facility funded or supervised by a state agency”, the regulation that is more specific to Student as a homeless person is determinative and may not simply be ignored. Any other interpretation would render the homeless standards (appearing within the DESE regulations governing school district responsibility) largely meaningless.

Fitchburg’s next argument is that even if one were to take into account the DESE Advisories and regulations relevant to homeless students, it would be arbitrary and unreasonable to consider Student to have been homeless simply on the basis of her placement in a STARR program. Its argument proceeds as follows: the above-quoted DESE homeless Advisories are premised on the principle that it is a Student’s placement in short-term housing (i.e., “temporary, transitional, or emergency” housing) that causes a student to be considered homeless; the Advisories provide that placement in a foster home or group home does not result in homeless status even though these are often short-term placements; the Advisories provide that placement in a STARR program generally results in homeless status; and yet Student’s stay in the STARR program was actually longer than her stay in either of the two foster homes in Fitchburg. Thus, Fitchburg concludes in its written argument (page 4): “In view of the circumstances, DESE’s insistence on carving an exception seemingly predicated on the short-term nature of a placement is arbitrary and unreasonable.”

As discussed above, the DESE Advisories expressly dictate a particular result—that is, that Student was homeless because she attended the STARR program. I agree with Fitchburg, that in order to overturn this result, I must find that the DESE Advisories , pursuant to which Student is considered homeless, are arbitrary or unreasonable.12 For reasons explained below, I decline to do so.

McKinney-Vento defines a “homeless” person to include an individual living in “transitional housing”, as well as an individual who “ lacks a fixed, regular, and adequate nighttime residence.”13 Similarly, in Advisory 2002-1 , DESE has concluded that children and youth who “lack a fixed, regular, and adequate residence will be considered homeless”.14

By policy, as reflected within Advisory 2007-9A , DESE has determined that a STARR Program, because of its particular program model , is temporary, transitional, or emergency homeless housing; and therefore, under McKinney-Vento, a student placed in such a program must be considered to be homeless. Advisory 2007-9A further makes clear that the length of stay in a STARR program is not, by itself, determinative.15 I find these aspects of Advisory 2007-9A to be reasonable and consistent with McKinney-Vento. For these reasons, I further find that it is not persuasive for Fitchburg to argue that Student’s length of stay at the STARR program is determinative of whether she should properly be considered homeless.

Fitchburg puts forward a final, alternative argument, which is that even if one were to apply the DESE homeless Advisories and conclude that Student was homeless when she attended the STARR program, Fitchburg is not responsible. Its position is that pursuant to these same Advisories , Student should also be considered homeless while she attended the first foster home (which was in Gardner), as well as the two subsequent foster homes in Fitchburg. Applying the homeless regulatory standards (quoted above), Narragansett would be responsible since immediately prior to attending the Gardner foster home (when Student arguably became homeless), Student’s residence was with Mother in Baldwinville, which is within the Narragansett Regional School District.

Fitchburg’s argument (that Student should be considered homeless when she attended the Gardner and Fitchburg foster homes which were all short-term) relies principally upon DESE Advisory 2004-7 which states, in part: “Additionally, there may be other instances in which children may be placed in residences that are not temporary by design ( for example, a foster home used as a short term placement ) but are emergency, transitional, or temporary placements for the child in question [emphasis supplied].” Fitchburg takes the position that this language indicates that for Student, her three, short-term foster home placements should all be considered homeless housing, making her homeless during this period of time.

As discussed above, DESE regulations establish school district responsibility when DCF places a student in a foster home. The general rule is as follows: “The school district where the student resides shall have both programmatic and financial responsibility … [w]hen students have been placed or are funded by the Department of Children and Families in a foster home located within Massachusetts.”16 The Advisories relied upon by Fitchburg indicate that a foster home may be considered homeless housing (thereby triggering different school district responsibility under the DESE regulations), but clearly this is intended to be the exception to the general rule applicable to foster homes. In order to fall within the exception, there would need to be a sufficient factual showing that Student’s particular foster homes in Gardner and Fitchburg were homeless housing because they were, in fact, “emergency, transitional, or temporary placements for the child in question.”

The evidentiary record indicates the location of the foster home, the name of the foster parent and the length of placement in each foster home but does not provide any other information. See exhibit 4. Consequently, I cannot tell whether any of these foster homes was intended to be an emergency, transitional or temporary placement for Student; and it would be inappropriate to draw any conclusion regarding the nature of a foster home placement or the purpose of the placement, merely on the basis of the length of Student’s stay in the foster home. In other words, I find the evidentiary record to be insufficient to allow a finding that these foster homes actually met the indicia of homeless housing. Fitchburg’s argument fails on this basis.17

For these reasons, I find Fitchburg’s arguments to be unpersuasive and conclude that Student was appropriately considered homeless only during the period of time while she attended the STARR program, thereby making Fitchburg financially responsible for her private educational placement.

In order to complete the analysis, I now turn to the remaining portion of the DESE letter of assignment of school district responsibility (regarding application of the so-called move-in law) even though this part of the letter is not in dispute.

Student’s April 20, 2011 move from the STARR program to Devereaux, which is a group home in Rutland, MA, triggered Narragansett’s responsibility to pay for placement at the McGrath School. This is based upon DESE regulations (603 CMR 28.10(4)(b)) that provides that the “school district where the parent(s) … resides shall have financial responsibility … when a student is in a living [in] a group home”. Parent resides within the Narragansett Regional School District.

However, Narragansett’s financial responsibility is delayed by the Massachusetts move-in law (G.L. c. 71B, § 5). The move-in law provides an exception to the general rule of assigning responsibility to a school district based on the municipality in which the parent or student currently lives. In relevant part, the law provides that when a student moves to a different school district on or after July 1 of any fiscal year, the former school district remains financially responsible for the special education and related services for the student until the end of the fiscal year (June 30 th ) in which the move occurred.18

As applied to the instant dispute, the move-in law requires that Fitchburg’s financial responsibility for Student’s private placement at the McGrath School continues until June 30, 2012. Narragansett assumes financial responsibility as of July 1, 2012.

For these reasons, I affirm DESE’s assignment of school district responsibility, thereby finding in favor of Narragansett and against Fitchburg for purposes of the instant dispute.

ORDER

DESE’s assignment of school district responsibility, by letter dated September 22, 2011, is AFFIRMED .

By the Hearing Officer,

_________________

William Crane

Date: January 26, 2012

COMMONWEALTH OF MASSACHUSETTS

Division of Administrative Law Appeals

Bureau of Special Education Appeals

Effect of the Decision

The final decision of the Bureau of Special Education Appeals 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.

Compliance

A party contending that a Bureau of Special Education Appeals decision is not being implemented may file a motion with the Bureau 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. 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 for review of the Bureau decision pursuant to M.G.L. c. 30A.

Confidentiality

In order to preserve the confidentiality of the student involved in these proceedings, when an appeal is taken to superior 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.


1

The parties were very ably represented as follows: Rebecca Bouchard representing Fitchburg; Alisia St. Florian representing Narragansett; Debra Comfort representing DESE.


2

George H. & Irene L. Walker Home for Children, Inc. v. Franklin, 416 Mass. 291, 295, 621 N.E.2d 376 (1993).


3

Walker, 416 Mass. at 295.


4

City of Salem v. Bureau of Special Educ. Appeals of Dept. of Educ. , 444 Mass. 476, 482, 829 N.E.2d 641, 645 (2005) (internal quotations and citations omitted).


5

Id.


6

This Advisory , entitled “Homeless Education Advisory 2004-9: Children and Youth in State Care or Custody”, was issued on April 5, 2004 and may be found at: http://www.doe.mass.edu/mv/haa/04_9.html


7

This Advisory addendum, entitled “Homeless Education Advisory 2007-9A – Addendum to Homeless Education Advisory 2004 9: Children and Youth in State Care or Custody”, was issued in 2007 and may be found at: http://www.doe.mass.edu/mv/haa/07_9a.html


8

For example, under DESE regulations, a homeless student is “ entitled to either continue to attend their school of origin, as defined by McKinney-Vento, or attend school in the city or town where they temporarily reside.” 603 CMR 28.10(5)(a). DESE has a process for resolving disputes as to whether a student is homeless. This process is separate and apart from the DESE special education regulations, as well as the BSEA’s role in determining a school district’s financial and programmatic responsibility for a special education student pursuant to DESE regulations. DESE’s internal McKinney-Vento Dispute Resolution Process applies when a school district challenges the enrollment rights of a child who is, or claims to be, homeless. In brief, the process requires the school district disputing the homelessness claim to provide the parent or guardian as well as DESE with written notice of the reasons for the challenge. The process also provides the parent or guardian an opportunity to appeal the district’s challenge to the DESE Commissioner. The Commissioner or designee must issue a written decision on the dispute, and this decision is final. The challenging school district must continue to allow the student to attend until the Commissioner or his/her designee has rendered a final decision on the dispute. See Homeless Education Advisory 2003- 7, 7A, 7B . The “BSEA lacks authority to make any changes to DESE’s final determination that Student is homeless.” In Re: Somerset Public Schools v. Fall River Public Schools & DESE , BSEA # 10-5775 (May 13, 2010) (Berman).


9

603 CMR 28.10(5)(b).


10

603 CMR 28.10(4)(b).


11

Cf. Davis v. Michigan Dept. of Treasury , 489 U. S. 803, 809 (1989)(“It is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme”).


12

See Fitchburg Gas and Elec. Light Co. v. Department of Public Utilities , 460 Mass. 800, 812, 956 N.E.2d 213, 222 (2011) (“Ordinarily courts grant great weight to an agency’s interpretation of its own rulings. However, as we have noted in the context of interpreting statutes and regulations, this principle is one of deference, not abdication, and this court will not hesitate to overrule agency interpretations of statutes or rules when those interpretations are arbitrary or unreasonable.”) (internal quotations and citations omitted).


13

See 42 U.S.C.A. § 11302(a)(1) and (3).


14

This Advisory, entitled “Advisory 2002-1: Definitions”, may be found at: http://www.doe.mass.edu/mv/haa/02_1.html


15

See Advisory 2007-9A (“The STARR program model anticipates a 14 to 45 day length of stay. … If it is necessary for the student to remain in the STARR program beyond 45 days, the student will continue to be considered homeless.”)


16

603 CMR 29.10(2)(c).


17

Compare In Re: Northampton Public Schools v. Dept. of Elementary and Secondary Education and Boston Public Schools , BSEA No. 11-7992 (July 18, 2011) (on the basis of the evidentiary record, the BSEA Hearing Officer was able to find that that the “Boston foster placement was temporary, and never was intended to be a permanent placement for Student” and therefore “Student remained a homeless student awaiting placement while he was staying in Boston”).


18

See City of Salem v. Bureau of Special Educ. Appeals of Dept. of Educ ., 444 Mass. 476, 484, 829 N.E.2d 641, 647 (2005) (discussing move-in law).


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