Gloria v Holyoke Public Schools – BSEA # 05-5493



<br /> Gloria v Holyoke Public Schools – BSEA # 05-5493<br />

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

BSEA# 05-5493

IN RE: GLORIA1 v HOLYOKE PUBLIC SCHOOLS et al

DECISION

This decision is issued pursuant to M.G.L. c.71B and 30A, 20 U.S.C.§1401 et seq ., 29 U.S.C. §794, and the corresponding regulations. A hearing occurred on October 6, 2005 and November 1, 2005 at the Catougno Court Reporting Offices in Worcester MA.

Those present for all or part of the hearing were:

Bryan Clauson Educational Surrogate Parent (ESP)

Yolanda Claudio DSS Social Worker

Celia Cauley Supervisor of Special Education, Holyoke Public Schools

Leticia Boyles School Counselor, Springfield Public Schools

Marianne Currier Director of Student Services, Holyoke Public Schools

Eduardo Carballo Superintendent, Holyoke Public Schools

Joanne Calabrese Teacher, Springfield Public Schools

Sandra Hill Special Education Director, Springfield Public Schools

Christina Gentile Attorney, Springfield Public Schools

Peter Smith Attorney, Holyoke Public Schools

Debra Comfort Attorney, Massachusetts Department of Education

Joan Beron Hearing Officer, BSEA

Darlene Coppola Court Stenographer, Catougno Court Reporting

The official record of the hearing consists of Parent’s2 Exhibits marked P1-P25, Holyoke’s exhibits marked H1-H34, Springfield’s exhibits marked SP1-SP9, DOE’s exhibits marked DOE1-DOE3 and approximately eight hours of stenographic, recorded oral testimony. Springfield’s request to continue the matter to submit written closing arguments was granted. The record closed on November 23, 20053 when the Hearing Officer received written closing arguments from all the Parties.

ISSUES

I. Is DOE’s notice of assignment designating Gloria as homeless and thus eligible to attend the Holyoke Public Schools correct?

II. If not, does Gloria reside in a permanent foster home in Springfield thus making Springfield responsible for her education?

III. Do any of the Parties in this matter owe Gloria compensatory education and/or are liable for damages to Gloria4 ?

FINDINGS OF FACT

1. Gloria (d.o.b. August 11, 1990) is a fourteen year old Hispanic girl who likes art and basketball (H18). Gloria has not lived with her mother since September 11, 2003 (6 th grade) when Mother asked DSS to voluntarily place Gloria because of behavior problems (H18, see P5). Gloria was in the temporary custody of the Department of Social Services (DSS) from October 15, 2003 until approximately November 2005 (H2, Claudio, stipulation). Until recently, Yolanda Claudio was Gloria’s social worker.5 Ms. Claudio was assigned Gloria’s case shortly after she began working for DSS in March 2004 (Claudio).6 Gloria first began attending Holyoke Public School s in 1 st grade7 remaining in regular education bilingual classes from 1 st through 6 th grade student receiving full English instruction during her final year. During that time there was no dispute that Gloria was a resident of Holyoke (Carballo). The Parties do not dispute that Gloria’s mother until recently lived in shelter placements in Holyoke. Gloria’s mother currently lives in Springfield MA.8 However, Gloria’s Mother has indicated that Gloria cannot return to her custody and as such Gloria’s plan has changed from reunification to long term foster care (Claudio).

2. Gloria has had at least 27 placements since being in the care and custody of DSS due to her oppositional behavior in the home (Claudio, Andrews-Semler). Gloria is currently in specialized foster care in Springfield MA (SP9).

3. During January of her 7 th grade year (03-04 SY) Gloria began as a regular education student in the Holyoke Alternative Program (HAP). HAP is an alternative public middle school program for Holyoke middle school students with behavior problems who have difficulty succeeding in a mainstream school environment (H1, H2, H3, H6, Cauley). At the time Gloria entered HAP she was living with a foster parent in Holyoke (H1, Cauley).

4. In March 2004 Gloria was evaluated for special education (H2). Like her behavior in the classroom, during testing Gloria fluctuated between being cooperative and vulnerable to being too tired to work or too rude, angry or bored to produce fully valid testing results (H2, compare H2, H3, H4, H5, Cauley). Testing fluctuated between English and Spanish to gain a better picture of Gloria’s full cognitive abilities (H2). Testing showed that Gloria was cognitively functioning in the extremely low range of intelligence (1 st percentile) in both English and Spanish with strong deficits in her verbal and nonverbal reasoning and her ability to sustain attention and concentrate. She tested several years below grade level in all academic areas reflecting both her cognitive limitations and her loss of instruction time due to behavior and attention difficulties (H2).

5. Gloria remained in the HAP program during 8 th grade (04-05 SY) as a regular education student (Cauley). A TEAM meeting occurred on September 21, 20049 (H5). Although invited, neither mother nor DSS attended the meeting (Cauley, see (H5). At that time Gloria lived with a different foster parent in Holyoke (H5, Cauley, compare H1, H5, SP4). A new foster parent accepted the IEP for placement in the HAP program with a behavior plan on October 3, 2004 (H5).

6. On October 18, 2004 Gloria told her teacher that she wanted to die (H6). Gloria was evaluated by the Behavioral Health Crisis Team (BHN) (H6). BHN determined that Gloria was safe to return home and to school and recommended that Gloria resume outpatient counseling (H7).

7. On October 19, 2004 DSS removed Gloria from her foster home in Holyoke and placed her in a shelter through the GANDARA Mental Health Agency in Springfield. She remained there until November 2, 2004 (SP4, Claudio). On October 19, 2004 while in school, Gloria received discipline for repeatedly walking in and out of class without permission, for refusing redirection, disrupting class and showing disrespect to her teacher (H8). On October 25, 2004 Gloria received another disciplinary report for disrespect to a teacher (H8). She was tardy at least three times between September and October and at least six times in November (H9).

8. On November 3, 2004 DSS removed Gloria from the shelter and placed her in a foster home in Holyoke where she remained until November 6, 2005. She was then removed from that foster home and placed in another Holyoke foster home for a day. DSS then placed Gloria in a foster home in Springfield where she remained until December 26, 2004 (Claudio, SP4).

9. On or about November 19, 2004 Holyoke learned that she was in a foster home in Springfield and contacted Gloria’s social worker Yolanda Claudio and asked her to withdraw Gloria from school (Claudio, see also Carballo). Holyoke prepared a transfer card designating Springfield as the new school system and withdrew her from Holyoke that day (H9, H10). On November 24, 2005 Gloria’s social worker confirmed that she was residing in the Springfield foster home (H11). The social worker was told to call the Springfield parent information center to enroll Gloria in school (Claudio, H12C). Ms. Claudio filled out an intake form with Springfield (Claudio). Springfield told the DSS social worker that it needed Gloria’s proof of residence and needed to give them a copy of her IEP since Gloria was in special education (Claudio). Springfield told Ms. Claudio that when it received a copy of Gloria’s IEP someone from the special education department would meet with her to determine where her school assignment was going to be (Claudio). Ms. Claudio tried to arrange to meet with the Springfield special education department, however, that meeting never occurred (Claudio).

10. Gloria was assigned to the Brookings School in Springfield on December 1, 2004 (H12). Springfield did not inform the DSS social worker about Gloria being assigned to a school in Springfield (Claudio). During the time that Gloria was enrolled in the Springfield Public Schools she was in several placements and was also on the run. Gloria never attended any public school in Springfield (Claudio, SP5, stipulation). After Gloria was truant for 25 days, Springfield inactivated her as a no show on January 14, 2005 (H14, SP5, SP6).

11. Gloria was reunited with her mother on December 27, 2004 (SP4). She remained in the custody of DSS (Claudio, Cauley). At that time Gloria and her mother were residing in a homeless shelter in Holyoke (Cauley).

12. On or about January 18, 2005 Gloria’s mother attempted to reenroll Gloria in the Holyoke Public Schools at the Parent information center (Cauley). Holyoke placed Gloria at the Peck Middle School on January 21, 2005 even though Gloria still had an IEP designating the HAP program because pursuant to the policy of Holyoke, any middle school student who reenters Holyoke Public Schools after October 1 st of the school year is required to attend the Transiency Opportunity Program (TOP) (Carballo, see H15). DOE is aware of Holyoke’s TOP program because Holyoke, as a designated under performing school, informed DOE, and DOE approved of the TOP program as part of Holyoke’s turn around plan (Carballo). While students are in the TOP program Holyoke conducts assessments and any necessary paperwork, including a home visit, to determine whether or not a student belongs to the Holyoke Public School and whether or not the family is stable (H15, Carballo, H20). If Holyoke determines that a family is not stable it will work with other agencies to try to stabilize the family (H15). Holyoke’s Superintendent determined that because Gloria and her mother were living in a homeless shelter she was homeless and that he felt that pursuant to the law (the McKinney-Vento Homeless Act) the Brookings School in Springfield must continue to provide services until such time as Gloria had a permanent and stable placement which DSS had (and has) failed to provide (H15, Carballo).10 He however did allow Gloria to remain in TOP; Id . Gloria was not formally evaluated while she was at TOP (Cauley).

13. Gloria remained with her mother until February 9, 2005. On February 9, 2005 DSS placed Gloria in a foster home in Holyoke (SP4). On February 10, 2005 DSS placed Gloria in a foster home in Hadley. She remained there for three days. She then went to a different foster home on February 14, 2005 for one day and was put in a shelter in Springfield from February 15, 2005 until February 28, 2005. She went to a foster home in South Hadley MA on March 1, 2005 and stayed there until March 21, 2005 (P16, SP4, Claudio). On March 28, 2005 she was moved to a foster home in Springfield under a 90- day diagnostic placement remaining there until September 26, 2005 when her placement was extended as a three-month foster care placement through the Center for Human Development11 . She was then placed in a shelter for thirteen days, spent a night in a foster home, and has been in specialized foster care in Springfield since October 12, 2005 (Claudio, Andrews-Semler, SP9).

14. While Gloria was attending the TOP program she was in a foster homes in Springfield MA, Holyoke, Hadley and South Hadley (P16). The Springfield placement became her thirteenth12 placement since July 2004 (H15, Cauley). During the 4 th quarter at TOP Gloria’s grades improved. Holyoke felt that her demeanor and behavior had also improved (Cauley, P15). While Gloria still had periods of misbehavior her aggressiveness had toned down and she was not always in trouble . She was attending regular education health classes and had made a friend. She also bonded with one of her one-to one aides (Cauley). However, the school psychologist also found that in school Gloria presented with a range of affect ranging from cooperative to demanding, to defiant and oppositional with both staff and peers. She was easily annoyed when disappointed or when she didn’t get her way because she “hates when she doesn’t have control over any situation” (H20). Her defiance included loud and intense use of foul language accompanied by posturing and gesturing with each emotional event met with sustained rage for hours or days (H20). While at TOP Gloria’s academic skills in all areas remained very low (H20). The ESP maintains that Gloria was suspended numerous times without the benefit of a manifestation hearing.13

15. In March 2005 Dr. Carballo received a call from the guidance counselor at Gloria’s school that Gloria was living in South Hadley and that the foster mother there had verbally requested Gloria’s school records (Carballo). On March 14, 2005 Gloria’s DSS social worker received a call from the school’s guidance counselor that per order of the Superintendent, Gloria was to be withdrawn from school at the end of the day. (H4, see also Carballo, Andrews-Semler). When the DSS Supervisor (Kristen Andrews-Semler) tried to contact Holyoke she was told that since the child was in a foster home in South Hadley she should be enrolled in the South Hadley Public Schools. DSS told Holyoke that Gloria’s placement was temporary and that she would probably be moved from there in a week. The Vice Principal of the Peck Middle School admitted to Ms. Andrews-Semler that Holyoke was not following Gloria’s IEP. Holyoke also told Ms. Andrews-Semler that all new children entering Holyoke are placed in TOP so that the school could evaluate the child’s needs. Dr. Carballo told Ms. Andrews-Semler that he was not required to follow the child’s IEP because she should never have been enrolled in the Holyoke Public Schools (P4, Andrews-Semler).

16. On March 30, 2005 Ms. Andrews-Semler filed a complaint with DOE (P3, Andrews-Semler). The complaint alleged that Gloria was withdrawn from the Peck program by Holyoke and was not currently enrolled in any program (P3). The report also stated that Gloria was improperly placed at the TOP program receiving frequent suspensions due to her behavior and further that TOP was improper because Gloria had an accepted IEP for the HAP program until September 20, 2005 (P4, see Cauley, see H13, H14, H15).

17. On or about March 31, 2005, John Bynoe, Associate Commissioner of Education at DOE spoke with Holyoke’s Superintendent regarding the situation. The Superintendent told Mr. Bynoe that DSS was not properly servicing its students and asked DOE to investigate DSS (H13, Carballo). DOE followed up its conversation with the Superintendent with a letter to him on or about April 1, 2005 (H13, P6). Dr. Carballo received the letter on April 6, 2005; (H13). In that letter the Superintendent was informed that DOE had determined that Holyoke was responsible for educating Gloria because after speaking to DSS it learned that Gloria had not attended school in any other community making Holyoke Gloria’s school of origin (P6, H15).14 In the letter Mr. Bynoe told Dr. Carballo that: “pursuant to the McKinney-Vento Homeless Education Assistance Act, homeless students have a right to either remain in their school of origin or to attend school in the city or town where they are temporarily residing. The term “school of origin” is defined in section 722 (g) (3) as “the school that the child or youth attended when permanently housed or the school in which the child or youth was last enrolled.” In that correspondence Mr. Bynoe also told Dr. Carballo that his application of the facts as provided by DSS made Holyoke the last school district of attendance and is the school of origin (P6).

18. On April 11, 2005 Dr. Carballo responded to DOE (H15, P7). Dr. Carballo was (and continues to be) appalled that a child should lose school time as a result of the incompetence of adults (Carballo). He identifies with Gloria because he also was taken away from his parents, living in an orphanage for five years. As such he took personal jurisdiction of the matter (Carballo). Dr. Carballo strongly feels that the only reason that Holyoke is educating Gloria is because DSS failed Gloria by not providing her with a stable placement and Springfield did not educate her as it was required to because she was enrolled there (Carballo, H15). He also feels that Gloria can not be homeless because she is in the custody of DSS, an agency who is supposed to take care of her and provide her with a home (Carballo). Further, her last foster placement has been for six months and therefore is not an emergency or transitional placement. He also feels that DSS should not decide who is and who is not homeless and leave a school district stuck with the bill (Carballo).

Dr. Carballo further felt (and still feels) that DOE’s decision is wrong because it did not investigate DSS and as such DOE did not provide him a fair hearing on the matter. Dr. Carballo also feels that DOE incorrectly applied the law because Gloria was in a temporary placement in a homeless shelter in Holyoke at that time and at a foster home in Springfield prior to her moving back to Holyoke with her mother. Therefore the Superintendent feels that Springfield should have educational responsibility for Gloria because that should have been her last school of attendance even if she did not actually attend school there (Carballo, H13). The Superintendent did follow DOE’s directive to re-enroll Gloria in the TOP program but did so under protest (H13).

19. Holyoke reenrolled Gloria in the TOP program on or about April 28, 2005 (P8, P14). A meeting occurred on that day with DSS and the DSS contracted placement agency, the ESP, and the school psychologist and nurse (P8, P14, Andrews-Semler). Holyoke staff told the other parties that the Superintendent would not agree to place Gloria in the HAP program even if it was on the IEP. Holyoke told the others that it would be placing Gloria in a room with no other children and that she would have to earn her way into a regular classroom (P8, P14, Andrews-Semler). DSS and the ESP were told that a paraprofessional would be assisting Gloria but that a special education teacher would not be available to her (P8). The ESP brought the matter before the Juvenile Court. The Juvenile Court judge informed the Parties that the matter was not within the Juvenile Court’s jurisdiction and that they should try to resolve it with DOE. Ms, Andrews-Semler emailed Joseph Dow of DOE’s Program Quality Assurance Division (PQA) the next day.

20. On or about May 9, 2005, Holyoke received a letter from PQA regarding an investigation of the complaint filed by the DSS Supervisor Ms. Andrews-Semler (H15). On May 13, 2005 Dr. Carballo forwarded PQA a copy of the November 19, 2004 transfer card from Holyoke to Springfield, the December 1, 2004 assignment to the Brookings School in Springfield, the letter from Springfield that Gloria was inactivated as a student on January 14, 2005 for not showing up to school, the DSS list of Gloria’s placements from July 2004 to April 2005 and the April 11, 2005 letter from Dr. Carballo to John Bynoe (H15). DOE also gathered information from Springfield (P9).

21. Holyoke replaced Gloria in the HAP program in early May 2005. On May 27, 2005 Gloria’s then ESP filed an emergency hearing request with the BSEA. In the hearing request the ESP indicated that Gloria had been improperly placed at TOP and that Gloria was not receiving her IEP services at HAP often sitting in a room by herself because Holyoke did not feel that Gloria was a resident in its school system; see Hearing Request. The matter was given emergency status with a hearing date of June 8, 2005.

22. On June 1, 2005 the ESP requested a short postponement and filed a motion for emergency placement along with documentation that HAP was Gloria’s last agreed upon placement. Holyoke also asked for a postponement so that they could formally request (and receive) a notice of assignment from DOE. Holyoke sent the request for assignment with documenting information to DOE’s Attorney Deborah Comfort on June 1, 2005 and June 2, 2005 (H16, see Holyoke’s postponement request). The school listed in Holyoke’s June 2, 2005 request for clarification of notice of assignment was the TOP program in Holyoke (H16, P12). The matter was continued until June 10, 200515 . The ESP’s motion for a “stay-put” placement was granted that day.16

23. On June 17, 2005, Marcia Mittinacht, State Director of Special Education, sent Celia Cauley DOE’s determination of school district responsibility and informed her that DOE was basing the assignment upon the application of McKinney-Vento (H19). Gloria had attended the HAP program in Holyoke at the beginning of the school year, remained there until November 19, 2004, was reenrolled in Holyoke (in the TOP program) on January 21, 2005 remained there until approximately March 14, 2005 and did not reenter Holyoke until April 28, 2005; see (H9, H10, Findings 12, 14, P14). DOE’s determination letter incorrectly stated that Gloria had been withdrawn from Holyoke in October 2004 and did not attend school until she was recently enrolled in Holyoke in May 2005 (H19). It also did however accurately state that Gloria’s mother’s last residence at that time prior to becoming homeless was in Holyoke, that she was, at that time, still in Holyoke in a homeless shelter, that there was no information regarding father’s residence and that Gloria had had numerous placements including the last then current foster home placement in Springfield (H19, see also Claudio). DOE determined that Gloria’s then current foster home placement in Springfield, like her other placements were temporary (H19). Based on the above DOE determined that Gloria was homeless pursuant to McKinney-Vento and had a right to remain in her school of origin or the school in which she was last enrolled (H19). The letter explained that the school of origin as defined by McKinney-Vento is the school the student attended when permanently housed. Ms. Mittenacht told Holyoke that even though Gloria was registered to attend school in Springfield she never attended school there (H19). Therefore Holyoke was the last school she attended and was therefore her school of origin; Id. DOE therefore concluded that:”[p]ursuant to McKinney-Vento, since Holyoke is the school of origin the student has the right to attend Holyoke”. (H19). The letter further explained that “In accordance with Department policy, the school district that was programmatically and fiscally responsible prior to the student becoming homeless shall remain responsible unless the state agency with care or custody of the student chooses to place the student in the school district where the student is temporarily residing”. Based on this policy, DOE determined that Holyoke had both programmatic and fiscal responsibility for Gloria; see (H19).

24. At hearing DSS explained that they considered Gloria homeless because all her placements have been temporary (Claudio). DSS has several types of placements for children in its care and custody. These placements include temporary placements that include Dexter homes (placements for one day), DSS or DSS contracted short term foster home placements lasting thirty, forty-five or ninety days, group homes, shelters, diagnostic placements in a facility or home and/or child specific homes where children are placed with approved identified persons who have expressed interest in the child ( see Claudio, Andrews-Semler). Day placements can be renewed daily and can last for a period of months or longer. Diagnostic placements can be combined with foster care placements; Id. Child specific homes can also be permanent placements if the goal is no longer reunification and at times a permanent placement can end up being for a short period of time (Claudio); however, if the child’s goal is reunification, the placement is usually temporary (Claudio). A DSS child is considered homeless when (s)he is in a short term or temporary placement like a group home. DSS has considered Gloria homeless because all her past placements have been temporary even if most have been in foster homes and even if one Springfield diagnostic foster care placement and continued foster care placement lasted six months (Claudio).

25. DOE’s determination that Gloria is homeless is based on the DOE adoption of Section 725(2) of the McKinney-Vento Homeless Assistance Act (McKinney-Vento) which defines a homeless child or youth as one who lacks a fixed, regular and adequate residence. DOE’s advisory 2002-1 explains that a fixed residence is one that is stationary, permanent and not subject to change; that a regular residence is one which is used on a regular (i.e. nightly basis) and that an adequate residence is one that is sufficient for meeting both the physical and psychological needs typically met in home environments. DOE advisory 2002-1 further explains that a homeless youth includes one who is sharing the housing of other persons due to loss of housing or economic hardship, those who are living in motels, hotels, trailer parks or camping grounds due to the lack of alternative adequate accommodations, those living in emergency or transitional shelters, those abandoned in hospitals or awaiting foster placement. A homeless youth also includes youth living in cars, parks, public places, abandoned buildings, substandard housing, bus or train stations and other evening residences not designed for or ordinarily used as regular sleeping accommodations for human beings. A homeless youth also includes unaccompanied youth not in the physical custody of a parent or guardian (DOE1). A homeless youth can also include children in the care or custody of DSS who are in shelters, hotline homes, bridge homes and those awaiting foster placement as well as those in foster placement used as a short term placement if that placement is an emergency, transitional or temporary placement for the child, ( see DOE2/DOE advisory 2004-9). Which children in state care or custody who should be identified as homeless is determined by the homeless liaison in consultation with the student’s social worker. Children and youth living in shelters, hotline homes, bridge homes and diagnostic placements are considered homeless pursuant to McKinney-Vento; however, youth in care and custody who are awaiting foster care must be identified on a case-by-case basis, taking into consideration whether their living situation is an emergency, transitional, or temporary placement or is intended to be a long term, foster care living situation.

26. DOE maintains that once a child in state care or custody is identified as homeless, that child, like any other homeless student, must either remain in their school of origin (the school where the child attended when permanently housed or the school in which the child was last enrolled), or be immediately enrolled in the school where they are temporarily residing (DOE2). DOE further maintains that homeless children and youth in state care and custody have the same rights as other homeless students. This includes the right to fully attend and participate in school activities, classes, educational programs, meals, social and athletic events, clubs, teams and other services; Id . School districts shall also seek the designation of an educational surrogate parent (ESP) for those children that require it; however lack of an ESP may not impede enrolling a child and IEPs shall be promptly implemented and team meetings called if necessary; Id .

27. DOE also maintains that if an enrollment dispute arises with a school district, the social worker shall be afforded the rights of a parent under McKinney-Vento and the student shall remain in the selected school while the dispute is being resolved until the Commissioner of Education or his/her designee makes a final decision regarding the dispute see DOE Advisories 2003-7). The challenging school district must continue to provide transportation and all other school services until the dispute is resolved; Id .

When a school district challenges the enrollment of a child, the school district must provide notice of the challenge to the parent or guardian, through the liaison using a form prescribed by DOE (Homeless Advisory 2003-7A), provide notice of the right to appeal the challenge to the Parent, through the liaison and include the DOE form whereby the Parent or Guardian can appeal DOE Advisory 2003 7B).17 The challenging school district must also notify DOE of the challenge on the day they file it and provide DOE with copies of all notices given to the parent or guardian (DOE Advisory 2003-7). The homeless liaison then provides the parent with written notice detailing the dispute resolution process. The notice must be easy to understand and must inform the parent of the option to obtain independent information and must list several Massachusetts Advocates for the Education of Homeless Children and Youth along with their contact information; Id .

A school district will have two working days to review its initial decision to challenge the right of the student to be enrolled and make a final decision regarding the student. After two days the School Superintendent must in writing make a final decision regarding its position concerning enrollment. The School District’s final decision must, in writing, include all information upon which it made its decision regarding enrollment along with the legal basis in support of the decision; Id .18

If the decision is adverse to the position of the parent a copy of the decision must be given to DOE and the Homeless Liaison who will give the decision to the parent. The Commissioner shall have two working days following receipt of the appeal by the Parent to issue a decision. The decision of the Commissioner is final. The presumption is to keep a homeless child in his school of origin; Id.

28. Neither Holyoke nor DOE followed the above procedure (Currier).

29. During the summer Gloria attended the HAP Latency program under a diagnostic evaluation. Her last evaluations done though DSS in June 2005 and by Holyoke in August 2005 show that she continues to have a clinical diagnosis of depression, as well as an Axis I diagnosis of Disruptive Behavior Disorder and Axis II diagnosis of Personality Disorder with angry and aggressive features (P21, P22). Gloria’s responses to assessments of her emotional functioning19 suggest feelings of isolation, instability and feeling overwhelmed and worried about her living situation and a lack of both intellectual and emotional resources to cope with her situation (P21, P22). Academic testing showed that Gloria’s reading, writing and math skills remain limited.20 Both the private and school psychologist noted that Gloria was in need of regular and reliable experiences in both her home and school placements to achieve success, and that she required a small therapeutic educational program that focuses on relationship building that incorporates counseling, social skills and anger management training and a behavior plan as well as modifications to address her cognitive deficits (P21, P22, P23). A psychiatric evaluation completed by the Child Guidance Clinic on June 23, 2005, but not received by Holyoke until November 18, 2005, has diagnosed Gloria with mild oppositional defiant disorder and cannabis abuse in remission (H34).

30. Gloria continues to receive her education in HAP. That IEP has not been accepted because Gloria’s behavior has deteriorated while she has been in the program (Currier, stipulation). The plan is no longer reunification with Mother (Claudio). Mother is still allegedly engaged in substance abuse and has not been required to seek treatment. Gloria has also engaged in substance abuse (Claudio, see also H34). DSS has not addressed this issue with Gloria or her mother (Claudio). Holyoke would like Gloria to have a psychiatric evaluation to see if the medication she was previously on to address her depression should be reinstituted; (Cauley, see P20). DSS told Holyoke at a TEAM meeting on June 30, 2005 that it did not think a psychiatric evaluation was necessary (Cauley, Claudio). DSS did not inform Holyoke that it had taken Gloria for a psychiatric evaluation at the Child Guidance Clinic at the TEAM meeting on June 23, 2005 or the TEAM meeting on August 30, 2005 and did not give Holyoke a copy of the evaluation until November 18, 2005 (H34). Even though Holyoke believed at the June 2005 TEAM meeting that DSS was not going to conduct the evaluations, it did not seek consent for a psychiatric evaluation or a psychopharmocological evaluation until November 2005 because DSS was supposed to conduct them (Currier). Once Gloria has completed the evaluations the TEAM will reconvene (Currier).

FINDINGS AND CONCLUSIONS

There is no dispute that Gloria has special learning needs as defined by M.G.L. c. 71B and 20 U.S.C. 1401 et seq. , and is thus entitled to receive a free, appropriate public education. However, Holyoke asserts that it is neither programmatically nor fiscally responsible for Gloria’s educational programming because she was last enrolled in Springfield. It also disputes that Gloria is homeless due to DSS’s placement of her in foster homes, many for an extended period outside of Holyoke. Holyoke also asserts that, because it was, and is, not programmatically and fiscally responsible it is neither liable for compensatory education or damages.

The preponderance of the evidence shows that DOE’s determination that Gloria is homeless and thus entitled to receive educational services in Holyoke as her school of origin is not in error.

The statutes and regulations governing the responsibility of public school districts for educating Massachusetts public school students, under both federal and state law, whether or not they are special needs students, are based upon the residency of the student.

Massachusetts General Laws c. 71B s. 3 “requires every city, town or school district to: (1) to identify the school-age children residing in that district who have special needs; (2) to diagnose and evaluate the educational needs of such children; (3) to propose a special education program to meet those needs; and (4) to provide or to arrange for the provision of such special education programs and to maintain records and reports of the above as required “(emphasis added) see also Northbridge v. Natick , 394 Mass. 70, 72, 474 N.E.2d 551 (1985). Section 5 of G.L. c. 71B assigns to the school committee which “provides or arranges for the provision of special education [to a child] pursuant to the provisions of section 3” the responsibility to “pay for such special education personnel, materials and equipment, tuition, room and board, transportation, rent and consultant services as are necessary for the provision of special education.”

In Board of Educ. v. School Comm. of Amesbury , 16 Mass.App.Ct. 508, 512, 452 N.E.2d 302 (1983) the Massachusetts Appeals Court had appropriately observed that 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. Under the terms of § 3, the department 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. See Massachusetts Hosp. Assoc. v. Department of Medical Sec. , 412 Mass. 340, 342, 588 N.E.2d 679 (1992); Grocery Mfrs. of Am., Inc. v. Department of Pub. Health , 379 Mass. 70, 75, 393 N.E.2d 881 (1979). Because a school committee’s fiscal responsibility for providing special education programs follows from the fact of a child’s residence in a municipality under that school committee’s jurisdiction, proper regulations addressing issues of residency also may have the practical effect of assigning fiscal responsibility.

Pursuant to the Department of Education’s (DOE’s) regulations, school Districts are generally programmatically and fiscally responsible for eligible special education students based on residency and enrollment; see 603 C.M.R. 28.10(1). Any school district deemed responsible for a student under 603 CMR 28.10 shall continue responsibility for such student until another school district is deemed responsible and shall provide those students with timely evaluation, services and placement; 603 CMR 28.10 (d), 603 CMR 28.10 (c ).

603 C.M.R. 28.10 also states that when students have been placed in a DSS foster home in Massachusetts or placed in a Massachusetts foster home funded by DSS, the school district where the student resides has both fiscal and programmatic responsibility for that student’s education; 603 C.M.R. 28.10 (2) (c ).

These same regulations also state that students that are considered to be homeless under the McKinney-Vento Homeless Assistance Act (McKinney-Vento) are 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. DOE and McKinney-Vento define a school of origin as the school the child or youth attended when permanently housed, or the school in which the child or youth laws was last enrolled (DOE1) (emphasis added), 42 U.S.C. 11431, Part C, Subtitle B, Section 722 (3)(E). DOE indicates that to the extent feasible, homeless students should remain in their school of origin unless doing so is contrary to the wishes of such student’s parent(s) or legal guardian or state agency with care or custody of the student; 603 C.M.R. 28.10 (5)(a), McKinney-Vento (42 U.S.C. 11431, Part C, Subpart B, Sec. 722 (3) (B)(A)(i). The school district that was programmatically and financially responsible prior to the student becoming homeless remains programmatically and financially responsible for that homeless student unless or until a parent, 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. If a custodian chooses to enroll a student in the school district where the child temporarily decides, the school district where the student is temporarily residing becomes programmatically and financially responsible upon the student’s enrollment if a student has an in-district IEP21 ; 603 C.M.R. 28.10(5)(b).

Holyoke disagrees with DOE’s determination that Gloria is homeless because she is in a Springfield foster home and was enrolled in the Springfield school system at the time she was homeless and as such should be Springfield’s responsibility pursuant to 603 C.M.R. 28.10 (2) (c ). It argues that McKinney-Vento should not apply since Gloria, because she is in a foster home, has a fixed adequate and regular residence and is not in emergency or transitional shelters or awaiting foster care placement as defined by McKinney-Vento; see 42 U.S.C. 11431, s. 725 (2)(A)(B)(i). It further argues that the revised non-regulatory guidance for the McKinney-Vento program issued by the United States Department of Education in July 2004 states that children who are not awaiting but are already in foster care are not considered homeless; see Item G-10, “Education for Homeless Children and Youth Program, Title VII-B of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11431 et seq. ) as amended by the No Child Left Behind Act of 2001.

DOE however maintains that Gloria is homeless as defined by McKinney-Vento because her foster care placement has been temporary and has included emergency homes, shelters, group homes and diagnostic placements; see 42 U.S.C. s. 11302 (a), DOE Advisory 2004-9, (SP9). DOE also asserts that there may be instances where children may be placed in residences that are not temporary by design. This includes a foster home used as a short-term placement if that placement is an emergency, transitional or temporary placement for the child; DOE Advisory 2004-9. The decision regarding whether foster care is a temporary placement or a long term, foster care living arrangement is identified on a case-by-case basis; Id.

DSS has made a case determination that Gloria’s last foster care placement in Springfield as well as her current specialized foster care placement is Springfield, as well as her other placements are temporary placements and should not be considered as a long term foster care living arrangement. DOE agrees with DSS’s determination. As such, DOE maintains that Gloria qualifies as a homeless youth under McKinney-Vento and, as such, is entitled to attend school in Holyoke as her school of origin and fully participate in her educational program and other services in Holyoke; see (DOE-2).

Neither the language of the special education law nor the regulations defines which students are homeless; see 71B, 603 C.M.R. 28.00 et seq. As such this is not a situation where DOE would be entitled to substantial deference in its interpretation of its own regulations; see Emerson Hospital v. Rate Setting Commission , 408 Mass. 785, 788 (1990); Massachusetts Medical Society v. Commission or Insurance , 402 Mass. 44, 62 (1988).

McKinney-Vento however defines a homeless child or youth as one who lacks a fixed residence. A fixed residence is one that is stationary, permanent, and not subject to change. When interpreting regulations one must look to the plain language of the statute and its underlying purpose. Massachusetts Hospital Association v. Department of Medical Security , 412 Mass. 340, 346 (1992) (citations omitted). The First Circuit Court of Appeals has concluded:

The starting point for interpretation of a statute is the language of the statute itself. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If the statutory text and congressional intent are ambiguous, [the agency’s] interpretation is entitled to deference if it is reasonable. [Internal quotations and citations omitted.]

Trafalgar Capital Associates, Inc. v. Cuomo , 159 F.3d 21 (1 st Cir 1998), applying the standard enunciated by the US Supreme Court in Chevron USA Inc. v. Natural Resources Defense Council, Inc ., 467 US 837, 842-845 (1984).

Holyoke’s Superintendent maintains that even if Gloria is homeless Springfield bears programmatic and fiscal responsibility for Gloria because she was last enrolled in Springfield at the time she was homeless. DOE determined in its June 17, 2005 notice of assignment that Gloria was homeless and that Holyoke was Gloria’s school of origin because she never attended school in Springfield. DOE’s rationale for determining Holyoke to be the school of origin is not entirely correct. As DOE correctly stated in its notice of assignment determination, that “[p]ursuant to McKinney-Vento, homeless students have a right to either remain in their school of origin or attend school in the school district where they are temporarily residing. The school of origin is defined by McKinney-Vento as the school the student attended when permanently housed or the school in which the student was last enrolled” (emphasis added). Gloria was last enrolled in Springfield and would have, if the custodian chose, be entitled to attend school in Springfield. McKinney-Vento does not require attendance as a condition for being a school of origin. However, this error is not outcome determinative. Prior to becoming homeless Gloria was permanently housed in Holyoke. As such Gloria’s custodian can choose either Holyoke or Springfield, where Gloria was last enrolled, as Gloria’s school placement. The custodian chose Holyoke.

However, even if DOE’s reasoning in its notice of assignment is not entirely correct, its determination that Gloria is homeless is entitled to deference. It is true that Gloria is not awaiting foster care as defined by McKinney-Vento but the definition of a homeless child or youth defines homelessness as individuals who lack a fixed residence. In defining homeless children and youth Congress has, in the McKinney-Vento Act, included examples that shall meet the definition of a homeless child or youth. However, the absence of an example in the law does not mean that an agency can not determine that some children are in a foster care placement on a temporary basis and others are placed in foster care in a long term living situation.

The United States Department of Education has, in its nonregulatory guidance stated that children already in foster care are not considered homeless. It is unclear, however, whether an agency such as DSS can ever for certain children use a foster home as an emergency, temporary or transitional placement as opposed to a long-term living situation. Where, as the case here, ambiguity exists, DOE and DSS must be given deference if the interpretation is reasonable; see Trafalgar Capital Associates, Inc. v. Cuomo , 159 F.3d 21 (1 st Cir 1998).

Although Holyoke’s argument has merit, DOE’s determination that Gloria has been in temporary foster care situations meets the reasonableness standard and by law is accorded deference. The evidence shows that Gloria has been in many temporary placements because she has run from placements, and on at least five occasions has been asked to be moved from placements because of her behavior and her effect on other foster children in the home (Claudio, Andrews-Semler). As such, her placements, including her placements in a foster home, have been temporary. Although one of her foster placements, when combined with a three-month diagnostic placement, lasted six months, there was no guarantee that the placement would be, could be, or was intended to be, a long-term living situation for this child. One of the underlying purposes of McKinney-Vento is to give homeless children equal access to the same free, appropriate public education provided to other children and youth; see McKinney-Vento s. 721. Another purpose is to provide homeless children with some school stability even if their living situation remains unstable. If DSS had not considered Gloria homeless, and had DOE not agreed with that definition, Gloria could have in one year been switched in school programs in Holyoke, Springfield and South Hadley see (SP9). This would not give Gloria equal access to a free appropriate public education or provide her with the educational stability she requires in order to learn.

Holyoke also maintains that if DSS and Springfield had done their jobs Gloria would be in a long-term stable living situation and would have attended a school program in Springfield. That argument has merit. It took DSS three years to put Gloria in a specialized foster care situation and change her plan from reunification with Mother even though there has been undisputed evidence that Gloria has repeatedly failed to be successful in less restrictive living options. There is also clear and convincing evidence that Mother is unable and unwilling to address issues to make reunification possible and that DSS has not offered substance abuse services or family therapy to Mother or Gloria. When the social worker tried to enroll Gloria in Springfield, Springfield did not enroll her immediately, did not inform DSS that it had enrolled Gloria and had given her a school assignment, and, once enrolled, took no steps to ensure Gloria’s attendance or implement any educational program for Gloria, let alone her IEP. DSS has repeatedly not effectively communicated with Holyoke and when it has done so, has not had effective communication with Holyoke in a timely manner.

However, DSS’s and Springfield’s errors do not excuse Holyoke from its own responsibility toward this child. Even if Holyoke truly believed that Gloria was a resident of Springfield, or any other community, it cannot unilaterally order that a child be removed from its jurisdiction and refuse to provide her with educational services. If a school district believes that a student is not a resident of its community it needs to seek guidance from DOE and needs to provide services for eligible special needs students pursuant to their IEP. If there is a dispute regarding whether or not a student is homeless an LEA is required to through DOE and McKinney-Vento to follow specific dispute procedures.

Holyoke committed several procedural violations that denied Gloria a free appropriate public education (FAPE) beginning when it ordered Gloria removed in November 2004. While it is unclear that the DSS social worker informed Holyoke in November 2004 that she thought Gloria should not be removed, it is clear that Holyoke did not ascertain if DSS agreed with the decision or explore whether Gloria could be homeless.

When Gloria reentered Holyoke in January 2005 there was no dispute that Gloria was a resident of Holyoke as she was living with her Mother in a homeless shelter there. Yet despite information that Gloria had last attended Holyoke in the HAP program in November 2004 pursuant to a still current IEP, and no school records that indicated that she attended school in Springfield, Holyoke placed her in the Transciency Opportunity Program (TOP) in a different middle school because of a policy that all middle school students who enter Holyoke after October 1 st of a school year attend there as part of its Turn Around Plan with DOE. While it is undisputed that Holyoke does have numerous transient students and needs a plan to deal with their needs, Gloria, as a special needs student, had an Individualized Educational Plan (IEP) to address her educational needs. A school district must implement an IEP in a proposed placement that was accepted without delay; see 603 CMR 28.05(7)(b). Any determination regarding the placement where an IEP is to be implemented has to be based upon the needs of the student as defined by his/her IEP; see 603 CMR 28.06(2) (a).

At hearing Holyoke asserted that Gloria moved into the district and that it offered Gloria comparable services that provided her with a FAPE. However, the evidence does not support this assertion. The evidence shows that while Gloria attended TOP she displayed variable ranges of affect with defiant behavior that included loud and intense use of foul language accompanied by posturing and gesturing and sustained rage that lasted hours or days (H20). She was suspended numerous times without receiving proper procedures or evaluation and Holyoke informed DSS that it was not following Gloria’s IEP; see Findings 14, 15.

On March 14, 2005 Holyoke’s Superintendent ordered that Gloria be removed from its school district despite information that her home placement elsewhere was temporary and that she would be moved again in a week. Holyoke did not allow Gloria to return to Holyoke until April 28, 2005 and did so under protest under an order by DOE. It did not place her in her accepted program at HAP until early May 2005 and did not provide her with the services on her IEP until an emergency hearing request and motion was filed in June 2005.

Gloria should not have been removed from school. When Holyoke was informed by DSS on March 14, 2005 that it considered Gloria homeless, Holyoke was effectively informed that there was a dispute regarding whether Gloria was homeless and as such Holyoke was required to follow the dispute procedures set forth in McKinney-Vento and DOE’s Advisory 2003-7A.

McKinney-Vento requires that if a dispute arises over school selection or enrollment in a school, the child or youth shall be immediately admitted to the school in which enrollment is sought pending resolution of the dispute; the LEA disputing the enrollment shall provide the parent or guardian of the child with a written explanation of the school’s decision regarding the school selection or enrollment, including the rights of the parent, guardian or youth to appeal the decision and shall refer the parent to it’s LEA homeless liaison to carry out the dispute resolution process; see McKinney-Vento, 42 U.S.C. 11431 Section 722 (3) (E). Pursuant to DOE Advisory 2003-7, Holyoke was required to allow Gloria to attend school there until the Commissioner or his designee made a final decision regarding the dispute, provide notice of the challenge to its homeless liaison and the parent or guardian using Form 2003-7A22 , provide notice of the right to appeal through the Homeless Liaison using Form 2003-7B23 , notify DOE of the challenge, provide DOE with copies of all notices given to the parent or guardian and, within two school working days, make a written final decision regarding enrollment and send the written final decision to DOE and to the guardian through its homeless liaison and await the final (not appealable) decision of the Commissioner regarding whether Gloria should remain enrolled in Holyoke; see (DOE Advisory 2003-7). Holyoke did not follow this procedure nor did DOE inform Holyoke of it. But for the intervention of DSS at this juncture24 , Gloria would have continued to be out of school.

On March 31, 2005 DOE’s Associate Commissioner of Education verbally told Holyoke’s Superintendent that Gloria was homeless and that she needed to return to school. DOE sent written notice the next day and challenged the decision. On June 1, 2005 Holyoke requested a determination regarding assignment to Holyoke. On June 17, 2005, DOE’s State Director of Special Education determined that Gloria was homeless and assigned responsibility to Holyoke.

Although DOE came to the correct determination regarding Gloria being homeless it did not follow the McKinney-Vento dispute resolution process or its own advisory interpreting McKinney-Vento.25 It is true that Holyoke did not initiate the process as it was supposed to. Although there is nothing in DOE’s regulations that expressly prohibits it from making a decision through its complaint decision or through the notice of assignment process, the regulations that define situations where a notice of assignment would be made include disputes involving situations defined in 603 CMR 28.10(3) and 28.10 (4) and do not include the disputes regarding homelessness enumerated in 603 CMR 28.10(5). If DOE had informed Holyoke when it talked to the Commissioner on March 31, 2005 of the McKinney-Vento dispute process, Holyoke would have been required to issue a final written decision two working days later (April 4, 2005) and the Commissioner would have made a final decision two working days after that on April 6, 2005. Gloria was not reenrolled in Holyoke until April 28, 2005 and did not receive services pursuant to her agreed upon IEP until June 10, 2005.

Currently evaluations are pending to determine what an appropriate educational program should be for her. As a homeless youth she is entitled to receive her last agreed upon services in Holyoke’s HAP program or if the Educational Surrogate Parent so elects, in Springfield where she temporarily lives in specialized foster care. Holyoke, Springfield and DOE all have committed procedural violations and this child has been denied a FAPE because of them.26 It is imperative that Holyoke conduct Gloria’s evaluations in a timely manner and the TEAM reconvened to develop an IEP for her. It is also imperative that all the educational agencies, the Educational Surrogate Parent and DSS properly communicate with each other and work together so that this child receives the services she needs in order to progress effectively in special education in the least restrictive environment.

ORDER

1. DOE’s notice of assignment designating Gloria as homeless is correct. As such Gloria is entitled to attend the Holyoke Public Schools. Holyoke’s removal of Gloria on November 19, 2004 through January 18, 2005 was in error as was its removal of her in March 14, 2005, thus denying her a free appropriate public education (FAPE) in the least restrictive environment (LRE). Therefore Holyoke is programmatically and fiscally responsible for Gloria’s education and will reconvene the TEAM after the evaluations to develop an amendment to her current IEP. Holyoke will file a report by December 9, 2005 containing the status for completion of the evaluation and the date for the TEAM meeting. Further dates may be set after receipt of the status report.

2. Holyoke also denied Gloria a FAPE in the LRE by inappropriately placing her in the TOP program and not following her IEP while she was in the HAP program on April 28, 2005 and did not provide her a FAPE until June 13, 2005.

3. Springfield and DOE also committed procedural errors that denied Gloria a FAPE. As such, Springfield, DOE and Holyoke will submit a compensatory education plan to the ESP no later than December 9, 2005.27

By the Hearing Officer,

Dated: November 28, 2005

Appendix A

MASSACHUSETTS DEPARTMENT OF EDUCATION

Homeless Education Advisory 2003 – 7A: School District Notification of Enrollment Decision

This form is to be completed when a school/district denies the school enrollment choice of a parent, guardian, or unaccompanied youth who is seeking to enroll in school under the McKinney-Vento Homeless Education Assistance Act and is required by the Massachusetts Department of Education McKinney-Vento Dispute Resolution Process.

Date :___________

Person Completing Form:_________________________ Title:___________________

School:________________________________________ District:________________

In compliance with Section 722(g)(3)(E) of the McKinney-Vento Homeless Education Assistance Act of 2001, this written notice of denial of school enrollment is provided to:

Parent/Guardian:__________________________________________________________

Student(s):_______________________________________________________________

After reviewing the request to enroll the above student(s), the school enrollment request is denied for the following reasons:

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

You have the right to appeal this decision by contacting the district’s Homeless Education Liaison who will assist you in the appeal process.

Liaison’s Name:________________________________ Phone #:________________

In addition:

· Until the Commissioner of Education of the Massachusetts Department of Education, or the Commissioner’s designee, makes a final decision regarding your appeal, the above student will be allowed to attend the school of choice and the school district will provide transportation and other school services.

· You may provide either written or verbal reasons for your appeal of this decision. An appeal form is attached.

· You may contact the Massachusetts Department of Education Office for the Education of Homeless Students:

Peter D. Cirioni @ 781-338-6294 Sarah Slautterback @ 781-338-6330

· You may seek the assistance of advocates or attorneys.

· A copy of this written notice of denial of school enrollment is being forward to:

Office for the Education of Homeless Students, Massachusetts Department of Education, 350 Main Street, Malden, MA 02148

Appendix B

MASSACHUSETTS DEPARTMENT OF EDUCATION

Homeless Education Advisory 2003 – 7B: Appeal of School District Enrollment Decision

You should complete this form if you are a parent, guardian or unaccompanied youth who disagrees with a school enrollment decision. The District Homeless Education Liaison will assist you with this form, and may take the information verbally if you wish.

Date :__________

Parent/Guardian:__________________________________________________________

Student(s):_______________________________________________________________

Phone #:________________________________

I wish to appeal the enrollment decision made by:________________________________

School:________________________________________ District:_________________

I have been provided with the following:

· a copy of the School District Notification of Enrollment Decision and the Massachusetts Department of Education (MADOE) Dispute process; and

· contact information for the district Homeless Education Liaison [the MADOE Office for the Education of Homeless Students contact information is printed below].

I disagree with the enrollment decision for the following reason(s): ______________________________________________________________

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

· I know that I may contact the MADOE Office for the Education of Homeless Students:

Peter D. Cirioni @ 781-338-6294 Sarah Slautterback @ 781-338-6330

· I know that I may seek the assistance of advocates or attorneys.

· I want a copy of this written notice of appeal of school enrollment to be forwarded to:

Office for the Education of Homeless Students, Massachusetts Department of Education, 350 Main Street, Malden, MA 02148

Signed:____________________________________________________ Date : / /


1

Gloria is a psuedonym used for confidentiality and classification purposes.


2

Gloria is in the custody of DSS. Gloria has been appointed an educational surrogate parent by the Juvenile Court. For ease of reference the Education Surrogate Parents’ exhibits are marked as “P” and because there are multiple school systems Holyoke’s exhibits are marked with “H’, Springfield’s exhibits with “SP” and DOE’s exhibits with “DOE”.


3

The record was originally closed on November 17, 2005. On November 21, 2005 Holyoke moved to reopen the hearing because it had on November 18, 2005 received a psychiatric evaluation from the Springfield DSS office. Springfield filed an opposition on November 21, 2005 and the Hearing Officer, by agreement of the parties, scheduled a conference call on that day for November 22, 2005 at 3:00 p.m. The ESP filed an opposition on November 22, 2005 at 2:15 p.m. A conference call occurred on November 22, 2005 at 3:00 p.m. The Parties agreed that the exhibit could be admitted if the Parties had an opportunity to supplement their closing arguments. The Hearing Officer allowed the Parties to supplement their closing arguments and extended the close of the record until November 23, 2005. Supplemental closing arguments were received by Springfield and Holyoke on November 23, 2005 and the record closed on that day.


4

The matter was originally bifurcated to hear only the DOE assignment issue. During the hearing the Parties asked to continue the matter to call additional witnesses. On October 11, 2005 the Parties jointly requested that the matter be expanded for the Hearing Officer to find facts to include the damages issue for exhaustion purposes pursuant to Frazier v Fairhaven School Committee , 276 F. 3d 52 (1 st Cir. 2002). The ESP requested that a specific compensatory award not be entered because appropriate compensation was still being considered. The Parties assented to the request. The Parties also agreed that absent findings for exhaustion purposes, no damages would be awarded because a Hearing Officer lacks jurisdiction to make such an award; see Frazier. On November 17, 2005, the ESP, in his closing argument, requested that the Hearing Officer order a specific compensatory award. As no evidence was presented regarding the appropriateness of the compensatory services, and no notice given to the other Parties, the Hearing Officer will make a ruling regarding whether compensatory education could be sustained but declines to order specific compensatory education. Gloria is currently attending a special education program in Holyoke pending evaluations and the Parties have asked that prospective issues not be heard because they are not ripe.


5

Gloria’s case has been reassigned to the Springfield DSS office because her mother lives in Springfield MA.


6

Ms. Claudio has had one previous social service job as a counselor at Bay State Medical Center (Claudio).


7

Gloria repeated 1 st grade. (H2).


8

There is no information about where Gloria’s father lives. His contact with Gloria is minimal.


9

The IEP administrative data sheet indicates that the TEAM meeting occurred on September 10, 2005, the attendance sheet indicates that the TEAM meeting occurred on September 21, 2004 and the IEP dates run from September 21, 2004-September 20, 2005 (H5).


10

The Superintendent was correct that Gloria would be considered homeless because she was living with her mother in a shelter. However, his interpretation of the requirements of McKinney-Vento are not entirely correct; see Findings and Conclusions, supra .


11

It appears that DSS knew on June 23, 2005 that Gloria would be able to enter a foster home through the Center for Human Development in its STAGES program. The record is unclear regarding whether DSS knew that Gloria would be able to enter a foster home placement that would be at the same location as the diagnostic placement; see (Claudio, Andrews-Semler, H34).


12

Of these thirteen placements six were foster homes, three were shelter or emergency placements, two were diagnostic placements and two were therapeutic placements.


13

The record contains no disciplinary reports or any other evidence regarding this issue.


14

The letter indicates that Gloria had not attended school in West Springfield. DOE and Holyoke were mistaken in that letter due to mistaken communication from DSS. The school system should have been Springfield.


15

As the matter also impacted Springfield and DOE the Hearing Officer gave both notice. Both eventually voluntarily became parties to the action and participated in the telephonic motion session. The Superintendent represented Holyoke during the motion session on June 10, 2005. Peter Smith filed a notice of appearance for Holyoke on June 13, 2005. Bryan Clauson replaced the former Educational Surrogate Parent and filed a notice of appearance on June 22, 2005.


16

On June 23, 2005 the Parties agreed to conduct an FBA and review or conduct other assessments and reconvene the TEAM by July 5, 2005. These assessments were done and Gloria attended HAP under an accepted plan for an extended evaluation pursuant to the Educational Surrogate Parent’s acceptance of the plan at a June 30, 2005 TEAM meeting; see (H17, H18, H21). Further evaluations were done under the extended evaluation period (H22, H23, H24). A TEAM meeting was held on August 30, 2005. Gloria continues to attend HAP pending further evaluation. The TEAM will reconvene to review those evaluations and placement . The Parties agree that any potential prospective issues are not ripe..


17

see appendix for copies of DOE Forms 2003 7A and 7B.


18

During this time DOE may provide technical assistance to the school district regarding its decision by notifying the school district as to the requirements of McKinney-Vento and any other applicable state and federal laws; Id .


19

Holyoke used the Behavior Assessment System for Children 2 nd Edition (BASC) self report, the Thematic Apperception Test (TAT) and the Sentence Completion Test to assess social emotional functioning. In June 2005 Gloria was privately assessed by DSS during her diagnostic placement. The psychologist used the Early Memories Test, the Bender Motor Gestalt Test, the Rorschach Inkblot Technique, a brief clinical interview and consultation with program staff to assess her emotional functioning.


20

Academic testing on the Woodcock Johnson 3 rd edition (WJ-3) in August 2005 show Broad reading skills at the 1 st percentile, basic reading skills at the 16th percentile, reading comprehension at less than the 1st percentile, broad math and math reasoning at the 1 st percentile and math calculation at less than the 1 st percentile (P21). Gloria was also assessed by DSS in June 2005. Testing on the WISC also shows functioning in the mild MR range (P22). Holyoke did not know about this testing at the time (Cauley).


21

For students who have an IEP for out of district services and are enrolled in a district where the student is temporarily residing, the school district where the student is temporarily residing shall have programmatic responsibility upon enrollment with financial responsibility remaining with the school district where the student resided prior to his/her homelessness; see 603 C.M.R. 28.10 (5) (b). Gloria’s IEP has called for an in-district program.


22

Form 2003 7A is replicated in Appendix I.


23

Form 2003 7B is replicated in Appendix B.


24

DSS should have clearly informed Holyoke in November 2004 that it considered Gloria homeless.


25

Homeless Education Advisory 2003-7 correctly interprets McKinney-Vento’s dispute resolution process.


26

Springfield’s procedural violations occurred on the school days that occurred between November 24, 2004 and January 18, 2005. DOE’s procedural violations on the school days that occurred between April 6, 2005 and June 10, 2005. Holyoke denied Gloria FAPE on the school days that occurred between November 19, 2004 through June 10, 2005. The facts meet the standard for awarding compensatory education; see Frazier supra. Damage claims are viable under Section 1983 when an official’s individual conduct is malicious, intentional or recklessly indifferent to protected rights. The determination of whether to award damages once a showing of malicious or recklessly indifferent conduct is made rests within the discretion of a jury or a judge (in a jury waived case) and not with a Hearing Officer; see Smith v Wade, 461 US 30 (1983), Frazier supra.


27

The Parties may also use the TEAM meeting to develop a compensatory services plan.


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