Freetown Lakeville Public Schools – BSEA # 08-2206



<br /> Freetown-Lakeville Public Schools – BSEA # 08-2206<br />

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

In Re: Freetown-Lakeville Public Schools

BSEA No. 08-2206

DECISION BASED ON WRITTEN SUBMISSIONS

This decision is issued pursuant to the Massachusetts special education statute, G.L. c. 71B (“Chapter 766), the Massachusetts Administrative Procedures Act, G.L. c. 30A, and regulations promulgated under those statutes.

On October 3, 2007, the Freetown-Lakeville Regional School District (Freetown-Lakeville or School) filed a request for a hearing with the Bureau of Special Education Appeals (BSEA) contesting the Massachusetts Department of Education’s (DOE’s or Department’s) assignment of responsibility for Student’s special education to Freetown-Lakeville.1

During a pre-hearing telephone conference held on October 25, 2007, the parties and agreed to have the BSEA issue a decision based solely on written material, without a hearing, pursuant to Rule XII of the Hearing Rules for Special Education Appeals . By agreement, the original deadline for submitting these documents was December 14, 2007. That deadline was extended to December 21, 2008 at the unopposed request of DOE.

Accordingly, on December 21, 2007 the School and DOE each filed Motions for Summary Decision together with documentary evidence and supporting memoranda, and the record closed on that day.

The documentary record consists of the School’s exhibits 1 through 23 (designated here as S-1 through S-23) and DOE’s exhibits 1 through 10 (designated DOE-1 through DOE-23).

ISSUE PRESENTED

Did DOE correctly assign educational responsibility for Student to Freetown-Lakeville in September 2007, or was Plymouth, NH the responsible school district?

POSITIONS OF THE PARTIES

Position of Freetown-Lakeville RSD

Student is an adult who is enrolled in a residential educational program. Student is under the guardianship of a private agency located in Massachusetts. Student’s parent formerly lived within the Freetown-Lakeville RSD, but established residency in New Hampshire before the guardian was appointed. Under these circumstances, the appropriate New Hampshire school district, and not Freetown-Lakeville, are responsible for Student’s education.

Position of Massachusetts Department of Education (DOE)

Since Student’s legal guardian is in Massachusetts, Student is a resident of Massachusetts. Student’s education, therefore, is the responsibility of the Massachusetts school district where Student’s parent last lived, namely, Freetown-Lakeville.

FACTS

The following facts are not in dispute:

1. Student is twenty-one years old, and has a disability. There is no dispute that Student is eligible for special education and related services pursuant to the IDEA, 20 USC §1401, et. seq., and the Massachusetts special education statute, G.L. c. 71B (“Chapter 766”).

2. Since June 30, 2003, Student has been continuously enrolled in a private, Chapter 766-approved residential school with headquarters in Waltham, MA, pursuant to successive IEPs issued by Freetown-Lakeville and accepted by Mother or Student.2 Neither the parties nor Student dispute the past or current appropriateness of this placement. (S-2)

3. In January 2005, Student turned 18. Although Mother signed Student’s IEP in March 2005, and also signed a Chapter 688 referral on Student’s behalf, Mother has never been Student’s guardian after Student reached majority. Student herself signed an IEP issued after a TEAM meeting held in November 2005. (S-3, S-5, S-7, S-9, S-11)

4. In November 2005, following eviction proceedings in Freetown, Mother and Student’s siblings moved in with relatives in Plymouth, NH, which is in the Pemi-Baker Regional School District in that state. Student remained in the residential school in Massachusetts. (S-12)

5. Shortly thereafter, Freetown-Lakeville indicated its intent to discontinue payment for Student’s residential school placement as of December 1, 2005. (S-6)

6. On November 28, 2005, Student’s then attorney sent a “Request for Clarification of School District Assignment, 603 CMR 29.10” to the DOE’s Office of Special Education Planning and Policy. The request stated that “…the DOE Office for the Education of Homeless Children and Youth has been contacted regarding this adult client, whose mother was forced to relocate to a family member’s home in new Hampshire following eviction proceedings…The Student…wishes to assert her right to remain in her school of origin under the McKinney-Vento Homeless Assistance Act…” (S-7).

7. Also on November 28, 2005, the Special Education Director for the Plymouth [NH] Regional High School sent a letter to Mother stating, in essence, that because Mother was not Student’s guardian, and because Student had never resided in the Pemi-Baker Regional School District, Pemi-Baker was “not responsible for her education, and will not attend the IEP meeting”3 and that Student “remains a resident of the Commonwealth of Massachusetts.”4 (S-5)

8. On December 13, 2005, DOE assigned programmatic and fiscal responsibility for Student’s special education to the “Freetown Public Schools,” based on DOE’s conclusion that Mother had become homeless when she left Freetown, and that Student, therefore, had the right to remain in her school of origin under McKinney-Vento. (S-8)

9. In a letter dated February 27, 2006, DOE reaffirmed this determination after considering additional information supplied by Freetown-Lakeville and Student’s attorney. In pertinent part the letter stated the following:

[Mother] was a resident in Freetown until 11/05 and while she resided there Freetown-Lakeville wrote an IEP for this student determining a residential placement. When [Mother] was evicted from her apartment, she moved to New Hampshire to live with relatives and enrolled her other children in the Plymouth, NH school system…Peter Cirioni, the [DOE’s] homeless liaison…stated that when [Mother] was evicted from her home and began residing with relatives she fit into the definition of homelessness. Also, according to the McKinney Vento Act, homeless students have a right to either remain in their school of origin or attend school where they are temporarily residing…the fact that [Student] turned 18 in 1/05 has no bearing…because…she has not set up her own residence. The last residence prior to [Mother] becoming homeless was Freetown therefore Freetown-Lakeville RSD remains both programmatically and fiscally responsible for this student’s educational services. (S-12)

10. On or about May 17, 2006, Mother bought a residential lot in New Hampshire. Subsequently, Mother completed construction of a house on the property. The record does not indicate exactly when Mother moved into the house, but does show that Mother most likely was living there by February 27, 2007 at the latest. (S-16)

11. On February 16, 2007, the Probate and Family Court for Bristol County appointed the Arc of Northern Bristol County as Student’s temporary guardian for purposes of “advocacy and personal decision making…[and]…medical management decisions…for appropriate treatment.” The record does not reveal whether the decree issued before or after Mother moved into her new home. The court extended the temporary guardianship to September 17, 2007. The record does not disclose the Student’s guardianship status after that date, but subsequent correspondence from the Arc referred to in Paragraph 16, below, indicates that the Arc intended to make the guardianship permanent. (S-13, 23)

12. In a letter dated March 5, 2007, Freetown-Lakeville again asked DOE to relieve it of responsibility for Student’s education. That letter informed DOE of the Arc’s temporary guardianship of Student as well as Mother’s continued residence in New Hampshire. (S-14)

13. On April 26 and May 1, 2007 Freetown-Lakeville’s attorney sent follow-up letters to DOE with additional information, including that in May 2006, approximately six months after DOE had determined that she was homeless, Mother bought real estate in New Hampshire, enrolled her other children in New Hampshire schools, and completed construction on a new house on the property she had bought. Additionally, Mother had moved into the house and registered to vote in New Hampshire. (S-16, 17)

14. DOE responded in a letter dated June 5, 2007, stating that based on the documentation of Mother’s residence in New Hampshire that Freetown-Lakeville had provided, as of February 2007, Mother was “no longer homeless, and we [DOE] consider her to reside in Plymouth NH. Therefore, Freetown-Lakeville is no longer responsible for educational services for this student.” Rather, “responsibility for this student’s educational services is New Hampshire.” (S-18)

15. In a letter dated June 22, 2007, the Arc appealed DOE’s decision on Student’s behalf, based on its guardianship of Student. Proof of guardianship was enclosed. The letter also indicated that the Arc serves as Student’s representative payee for SSI benefits, that Student plans to remain in Massachusetts when she turns 22, that Mother provides no financial assistance to Student and that Mother has limited contact with Student and the residential school. (S-22)

16. On September 14, 2007, in response to the Arc’s letter, DOE reversed its decision of June 5, 2007. Citing 603 CMR 28.10(3)(a) and 28.10(8)(c)(4)5 , DOE once again determined that “Freetown-Lakeville, as the school district where the mother last lived will maintain programmatic and fiscal responsibility.” DOE did not directly state the reason for its reversal but did note that “[y]our letter had stated the fact that we did not take into consideration the fact that the student has had a guardian in MA since February 16, 2007.” (S-22)

17. There is no indication in the record that Student wishes to leave her current placement.

FINDINGS AND CONCLUSIONS

Based on a careful review of the evidence and applicable law, I conclude that DOE’s determination that Freetown-Lakeville is programmatically and fiscally responsible for Student’s educational placement is correct.

Legal Framework

There are three strands of legal analysis that govern in the instant case: Federal and state law governing school district responsibility based on residency; statutory and regulatory rights of homeless students, and state regulations transferring educational rights to adult special education students.

Federal and State Special Education Law Regarding LEA Responsibility Based on Residency

As a condition of receiving federal funding, the IDEA requires states to make a free, appropriate public education to “all children with disabilities residing in the state between the ages of 3 and 21, inclusive…” 20 USC §1412(a)(1)(A). Further, states must ensure that each local education agency provides for the “education of children with disabilities within its jurisdiction.” 20 USC §1413(a)(1). The U.S. Department of Education, Office of Special Education Programs (OSEP) has interpreted the statute to mean that “residence [of the child] that creates the duty…” under the IDEA, not the location of the child or school,” and has further stated that “a child is a resident of the State which (1) their parent or guardian is a resident of; or (2) the child is a ward of.” Letter to McAllister , (OSEP), 21 IDELR 81 (June 9, 1994).

On the other hand, the IDEA does not dictate how to determine whether a child, parent, or guardian is or is not a “resident” of a state or school district. Rather, the IDEA leaves to the states “the assignment and allocation of financial responsibility for special education cost,” the definition of “residency” and the choice as to whether to provide FAPE to children who may not be considered “residents” under state law in addition to those whose residency is not an issue. Manchester School District v. Crisman and Pittsfield School District , 306 F.3d 1, 37 IDELR 211 (1st Cir. 2002).6

Massachusetts law gives responsibility for special education services to the city, town, or school district where the student resides.7 In many, if not most circumstances, for special education purpose, the residence of one or both parents determines student residence.

If a student has reached the age of 18 and has established his or her own residence as an adult, the responsible district is the one in which the student resides, regardless of where the parent(s) live.

For more complex situations ( e.g ., split families and out-of-home placements)8 DOE has enacted regulations at 603 CMR 28.10 that address many commonly-occurring living situations.

Pursuant to these regulations, DOE may assign a city, town, or school district to be responsible for a student’s special education where, as here, (a) the student is living in an out-of-home placement, including a residential special education school,9 and (b) one or more of five possible circumstances exist, including, in relevant part, when the residence or residential history of the parent(s) or legal guardian is in dispute; or when the student has a legal guardian who has been appointed on a limited basis. 603 CMR 28.10(8). Here, it is appropriate for DOE to determine school district responsibility because Student is in a residential school and has a legal guardian who has been appointed on a limited basis (i.e., to provide advocacy and monitor medical decisions.)10 Id.

In making such an assignment, the DOE must apply one or more of seven criteria which are set forth in the regulations at 603 CMR Sec. 28.10(8)(c). The relevant criterion here, where Student’s guardian is the Arc, and not an individual (and where the Arc also has limited authority over Student) is 603 CMR 28.10(8)(c)(4), which states:

[i]f the legal guardian [of a student] is an agency or organization, or the legal guardian has been appointed on a limited basis such as a guardian ad litem or a guardian appointed solely to monitor medications or finances, the school district where the parent(s) lives or last lived shall be responsible. Id.

Rights of Homeless Special Education Students

Under the provisions of McKinney-Vento, 42 USC §11431, et seq ., homeless public school students, including students who are eligible for or receiving special education, are entitled to elect to continue attending school in the district where they attended before becoming homeless or to attend in the school district where they are temporarily living. The applicable state regulation, 603 CMR 28.10(5) provides as follows:
(5) Responsibility for Homeless Students . Nothing in 603 CMR 28.00 shall limit the educational rights of homeless students and parents afforded under…(McKinney-Vento). The following provisions apply to these students.

1. Homeless students shall be 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. To the extent feasible, homelss students hould remain in their school oforigin unless doing so is contrary to the wishes of such student’s parent(s) or legal guardian…

2. 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…chooses to enroll the student in the school district where the shelter or temporary residence is located…

Transfer of Rights At Majority

Pursuant to 603 CMR 28.07(5), when a student turns 18, “he or she shall have the right to make all decisions in relation to special education programs and services. The school district shall have the obligation to obtain consent from the student to continue the student’s special education program. The parents will continue to receive written notices and information but will no longer have decision-making authority…” unless the parent obtains full guardianship from a court of competent jurisdiction, or, in the absence of guardianship, the student chooses to share decision-making with the parent or delegate decision-making authority. Any such choice by the adult student must be made in the presence of the TEAM and documented in writing. 603 CMR 28.07(5) (a), (b), (c).

Analysis

The DOE regulations on point do not directly address the fact pattern presented in this case, but the following analysis incorporates the relevant statutory and regulatory provisions to reach a logical and equitable result. Student is twenty-one years old. At all relevant times, Student has been enrolled in a residential school pursuant to accepted IEPs issued by Freetown-Lakeville. Student turned 18 in January 2005, thereby becoming her own guardian. Student remained her own guardian, without interruption, for over two years after reaching majority, until February 16, 2007 when the Arc received guardianship.

In November 2005, DOE determined that Mother and Student were homeless. Because Student was an adult at the time, she became homeless not as a dependent child, but as an adult who lost the home that had been hers before she turned 18, Mother’s apartment in Freetown. As a homeless student, Student had the right, under the McKinney-Vento Homeless Assistance Act, to continue in the school that was provided by her “district of origin,” Freetown-Lakeville. In this case, that school happened to be a residential special education placement.

Student elected to continue in her school of origin. She signed the IEP that Freetown-Lakeville issued in November 2005, and upon which Freetown-Lakeville relied to continue her placement, and remained in the residential school pursuant to that IEP. Student never moved to New Hampshire, and never enrolled in public schools in that state. Indeed, a representative of the Plymouth, NH public schools indicated that unless Mother became Student’s guardian, Student moved to New Hampshire, or both, Student could not enroll there, as she was a Massachusetts resident.

DOE determined that Mother’s status as a homeless person ended on an unspecified date in February 2007, based on evidence that Mother had moved into a permanent home. On February 16, 2007, the Arc of Northern Bristol County was granted guardianship of Student.

At issue is whether Mother’s residence—whether in New Hampshire or elsewhere—has any relevance to Freetown-Lakeville’s responsibility for Student’s educational program. The only reasonable interpretation of the regulations is that Mother’s residence has no relevance, and has not since she became homeless in November 2005. The confluence of the facts here—Mother’s (and Student’s) becoming homeless after Student had reached majority and Student’s choice, as a homeless student, to continue in the program provided by Freetown-Lakeville—dictate that Student continues to be a homeless adult whose last residence before becoming homeless was Freetown-Lakeville.

To elaborate, once Student had turned 18, she acquired all rights that Mother had had to make educational decisions. By electing to continue in the school program provided by her district of origin, Student effectively perpetuated her “last” school district before becoming homeless as Freetown-Lakeville. This is underscored by Freetown-Lakeville’s obtaining Student’s acceptance of the IEP issued in November 2005, had never subsequently contested the validity of that acceptance, and indeed, had relied on that acceptance to continue funding Student’s services. To conclude otherwise would be to leave Student with no responsible school district, in Massachusetts or elsewhere, a result that clearly is contrary to the intent of the relevant statutes and regulations. Student has not established residency in any district other than Freetown-Lakeville, either inside or outside of Massachusetts. She has no right to services from New Hampshire and no obligation to move there. Moreover, in the absence of guardianship, Mother had, and has, no right or authority to choose whether Student remains enrolled in Freetown-Lakeville or enrolls in New Hampshire, or even to determine where Student lives. Further, Mother had and has no legal obligation to house Student in New Hampshire.11

The DOE has found Freetown-Lakeville responsible for Student’s education based on her having an organizational guardian in Massachusetts, such that Mother’s last district of residence maintains responsibility for Student’s education, pursuant to 603 CMR 28.10(8)(c)(4). While it is unclear how Mother’s residence is relevant under the current facts, DOE has reached a correct result. In any event, that Student has a Massachusetts guardian reinforces her contacts in this state, and the status of Freetown-Lakeville as Student’s only “last” town of residence.

ORDER

For the reasons stated above, the Freetown-Lakeville RSD remains responsible for Student’s residential educational placement.

____________________ _____________________________

Dated:

Sara Berman, Hearing Officer


1

In its original hearing request, Freetown-Lakeville also named the Pemi-Baker Regional School District in Plymouth, NH as a party because Parent lives in Plymouth, NH. Pemi-Baker filed a motion to dismiss it as a party based on lack of BSEA jurisdiction over school districts outside of Massachusetts. I granted Pemi-Baker’s motion on October 26, 2007.


2

A school district other than Freetown-Lakeville made the initial placement in June 2003. Mother moved to Freetown, in late 2003 or early 2004. On December 22, 2004, Freetown-Lakeville issued an IEP that continued Student in the same residential placement through December 2005. Mother accepted this IEP. (S-2)


3

The record contains no further direct information as to what IEP meeting the Plymouth, NH High School special education director was referring to, but most likely is a November 2005 meeting mentioned in a letter dated January 10, 2006 from Freetown-Lakeville’s counsel to DOE. As stated above, that TEAM meeting yielded an IEP for the same residential placement, funded by Freetown-Lakeville, and Student accepted the IEP.


4

Freetown-Lakeville has asserted that Mother attempted to enroll Student in school in New Hampshire. Student’s attorney has claimed that Mother made no such attempts. There is insufficient information on the record to resolve this issue. Regardless of Mother’s actions, however, there is no dispute that the New Hampshire district declined to enroll Student unless, at a minimum, Mother became Student’s guardian.


5

As will be discussed below, these regulations provide that where an adult student in a residential special education school has a guardian that is an agency or organization, the responsible district is the school district where the parent last lived. Id.


6

In this case, the First Circuit noted that just as the IDEA does not determine what constitutes residency in a particular state, requiring only that children who are considered “residents” receive FAPE, the IDEA also does not prohibit states from choosing to provide FAPE to children within the state who may not be considered residents, including children whose parents live in other states. Such a choice is the state’s option. Id.


7

G.L. c. 71B §1; 603 CMR 28.02(8); 28.10. See also G.L. c. 71§1, requiring cities and towns to provide public education.


8

. George H. & Irene J. Walker Home for Children v. Town of Franklin , 416 Mass.291, 296 (1993)


9

603 CMR 28.10 (3)(b) provides that the “school district where the parent(s) or legal guardian resides shall have both programmatic and financial responsibility…[w]hen a student whose IEP requires an out of district placement lives and receives special education services at a special education residential school.”


10

Arguably, there also is a dispute as to the parent’s residential history, but the parent’s current residence in New Hampshire is not in dispute.


11

The situation here differs from that presented to OSEP in Letter to Moody , 23 IDELR 833 (October 24, 1995), which states that when parents/guardians with children in Massachusetts residential schools leave the state, the new state becomes responsible. OSEPS’ letter appears to assume that the children referred to are minors or wards of their parents. Here, Student is an adult, and has been her own guardian or has had a Massachusetts guardian. Therefore, Student’s residence cannot be claimed to be the same as Mother’s.


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