Hanover P.S. and Randolph P.S. v. Rockland P.S. and Massachusetts Department of Education – BSEA #05-1705



<br /> Hanover P.S. and Randolph P.S. v. Rockland P.S. and Massachusetts Department of Education – BSEA #05-1705<br />

COMMONWEALTH OF MASSACHUSETTS

Bureau Of Special Education Appeals

In re: Hanover P.S. & Randolph P.S. v. Rockland P.S. & Massachusetts Department of Education

BSEA #05-1705

RULING ON HANOVER AND RANDOLPH PUBLIC SCHOOLS’ MOTION FOR SUMMARY JUDGMENT

The Hanover Public Schools (Hanover) and Randolph Public Schools (Randolph) seek a reversal of the Massachusetts Department of Education’s (DOE) retroactive assignment of responsibility for Student’s July of 2002–August of 2004 educational placements.1 ,2 The issue at hand is whether DOE’s assignment regulations found at 603 CMR 28.03(4)(f-h) allow for a retroactive application, or whether such assignment requires notice, and is therefore prospective only.

Hanover and Randolph assert that DOE’s notice requirement in its assignment regulations 603 CMR 28.03(4)(f-h) specifically prohibits retroactive application of its local education agency (LEA) assignments. Contrary to this position, the Rockland Public Schools (Rockland) and DOE assert that in certain situations (such as the current one), retroactive application of its assignments are mandated, for its special education enabling statute3 , as interpreted by the Massachusetts Supreme Court4 , prohibit DOE from assigning responsibility to a town wherein the child had not resided.

The stipulated facts are as follows:

In January of 1999 when Student’s mother and father gave up their son for adoption, they resided, respectively, in Hanover and Randolph. (Stip. 2)

Thereafter, on or about July of 1999, Student resided in Rockland with his aunt, pursuant to a DSS foster care placement. She was considered his “pre-adoptive mother”. (Stip. 3) He stayed there until June of 2001, when DSS placed him at a diagnostic residential program at the Franklin Perkins School. Student remained at this school until April of 2004 when DSS moved him to the Stetson School, another residential educational school. Both schools are Chapter 766 approved. DSS funded the residential portion, and through its TEAM process, Rockland proposed IEPs5 for and funded the day portion of these placements. (Stip. 5, 7, 10, 17) Student’s foster parent accepted the 2002 – 2003 IEP, but did not attend the January of 2003 TEAM meeting or sign the proposed 2003 – 2004 IEP. (Stip. 7) A surrogate parent was appointed on April 10, 2003, and she accepted the 2003 – 2004 IEP. (Stip. 9)

By January of 2003, Rockland expressed concern regarding its responsibility since Student’s aunt was no longer involved with Student, and in April of 2003, Rockland expressed this concern to DSS. (Stip. 8, 14) Rockland did not request a DOE assignment, and apparently, did not know of the parents’ whereabouts, and therefore could not have notified Hanover and Randolph of their potential responsibilities. (Affid. of Kathryn Salem)

On May 4, 2004, DSS sought a DOE assignment of LEA responsibility pursuant to 603 CMR 28.03(4)(f-h). On May 26, 2004, DOE assigned responsibility to Hanover and Randolph, the resident towns of mother and father at the time they relinquished their parental rights. (Stip. 16)

On August 18, 2004, DOE responded to Hanover’s and Randolph’s request for clarification, stating that the assignment was retroactive to July of 2002.6 On September 22, 2004, Hanover filed an appeal of DOE’s retroactive application of its May of 2004 assignment, and on December 1, 2004, the BSEA granted Randolph Public School’s request to intervene. (Stip. 22, 23, 24)

RULING

Summary Decision is appropriate where there are no material facts in dispute and the moving party is entitled to judgment as a matter of law. 801 CMR 1.01(7)(h). The parties have stipulated to the relevant facts; summary judgment is appropriate in this case. Pursuant to its LEA assignment regulations wherein Student has no parents and has no residence other than his residential school, DOE assigned Hanover and Randolph as the LEAs responsible for Student’s education; they do not challenge the legality of this assignment. However, they do correctly challenge DOE’s retroactive application of this LEA assignment, for it is inconsistent with its regulations. That is, DOE has assigned responsibility for a time prior to the requisite assignment notification. Further, neither the Massachusetts special education enabling statute nor the relevant case law necessitates a departure from the regulation’s notification requirement. Accordingly, Hanover’s and Randolph’s Motion for Summary Judgment in their favor is GRANTED, and Rockland retains its responsibilities for Student’s education until DOE assigned such responsibilities to Hanover and Randolph.

The pertinent regulation states:
(f) When a student is in a living situation [wherein he lives and receives special education services at an approved special education residential school], and the student has been surrendered for adoption … the responsible district [pursuant to 28.03(4)(b) is the parent’s school district]. The Department may assign or a school district or agency may request the Department’s assistance in assigning a city, town, or school district as the parent’s district when the father’s, mother’s, or guardian’s residence or history is in dispute, or the student is not receiving services. …

(g) The Department shall use the following criteria to assign a city, town or school district responsibility for the provision of special education to a child under this section:

1. The last known Massachusetts residence of the child’s father, mother, or guardian prior to … surrendering the child for adoption, or having parental rights terminated.


(h) Using the above criteria, the Department shall notify in writing the assigned school district(s) … Upon notification of responsibility for provision of special education to a child under this paragraph, the school district(s) shall immediately begin to provide such services in accordance with the requirements of these regulations. Until such notification, the school district that had been responsible for providing special education to such child under these regulations shall continue to be responsible .

603 CMR 28.03(4)(h) (emphasis added).

In this case, Rockland had been responsible for Student’s education prior to DOE’s assignment. Accordingly, this regulation is clear on its face: Rockland retained that responsibility until DOE provided Hanover and Randolph notification of their assignments.

DOE and Rockland assert that Massachusetts’ special education enabling statute and relevant case law require a different interpretation of its regulation. They turn to the overriding principal that LEA responsibilities are dictated by a student’s residence. See Mass. Gen. Laws ch. 76, §5; ch. 71B, §§3, 5; George H. and Irene L. Walker Home for Children, Inc., v. Franklin, 416 Mass. 291, 296 (1993). The Court recognized that determining the residence of a child “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.” Accordingly, DOE promulgated regulations covering the many confusing situations, one of them being where institutionalized children have no in-state parents. Guided by the Walker Court’s principal of LEA responsibility based on residency, DOE and Rockland assert that while Student was no longer residing in Rockland (the foster parent relationship had ended), Rockland can not be held responsible for his education and should be reimbursed for its financial payments. This reasoning would prevail if Student were to have resided someplace else during the period in question. However, he had no residence other than his school, and that is, by law, not deemed to be a residence. See 603 CMR 28.02(20), Walker at 296 n. 8. Accordingly, this is a “pure assignment” case guided by 603 CMR 28.03(4)(f-h) where DOE is authorized to assign LEA responsibility, based not on the Student’s residence, but on specific reasonable criteria. This specific regulation (as opposed to the other residency regulations) requires notice before an LEA becomes responsible7 , and further requires the previously responsible LEA to continue its responsibilities until DOE assigns a different LEA. Thus, in this current case, Rockland’s and DOE’s assertion that the enabling statute and case law mandate reimbursement so as to abide by the overriding residency principal, is flawed. Student had no residence other than his school. DOE may choose to promulgate regulations calling for retroactive assignments (i.e., reimbursement for funds expended), for such is arguably equitable. However, absent such regulation, there is no legal basis for ordering it. Rather, DOE’s regulation is clear on its face: the assignment requires notification – provided in this case on May 23, 2004 – , and responsibility is therefore not retroactive prior to such date. Hanover’s and Randolph’s responsibilities began then, not before. This same conclusion is reached by Hearing Officer Byrne in In re: East Longmeadow Public Schools, 39 IDELR 54 (2003) and by Hearing Officer Sherwood in In re: Lowell Public Schools, BSEA #02-0735 ; 8 MSER 202 (2002). Several Bureau decisions found school districts to have retroactive responsibilities, however, only one was pursuant to the same assignment regulation 603 CMR 28.03(4)(f-h), and apparently in that case, the moving party had not raised the implication of the regulation’s notification mandate. See In re : Rockland Public Schools, BSEA #04-2990 (2004). Further, in two cases, there were in-state parents, and as acknowledged by the Walker Court, the department may promulgate regulations to define residence where a student’s residence is unclear – and DOE inferred such students’ residences to be that of their parents. See In re: Georgetown Public Schools et al ., BSEA #02-1798; 8 MSER 95(2002), aff’d, (Bohn, Jr., J.)(Mass. Super. 2003) appeal docketed, (No. 09394)(Mass. SJC 2003); In re: Salem Public Schools, BSEA # 02-4739 (2003). Finally, although the equities are not at issue in this case, I note that Rockland, the party held responsible for Student’s education until DOE’s assignment was made, had continued developing IEPs for Student, for it understood and hoped that Student may return to his aunt’s residence. Thus, that it is now deemed responsible is not a financial surprise.

By the Hearing Officer,

_____________________

Date: April 6, 2005


1

The parties requested and the BSEA agreed to decide this Motion for Summary Judgment based on the stipulations 1 – 26, Kathryn Salem’s Affidavit, and briefs. After several jointly requested postponements, the parties filed their briefs by March 7, 2005.


2

Hanover and Randolph do not contest their responsibilities for prospective services for Student, pursuant to DOE’s May of 2004 assignment.


3

M.G.L. Ch. 71B.


4

Walker Home for Children v. Franklin, 416 Mass. 291 (1993).


5

Rockland’s IEPs covered the periods January of 2002 through January of 2003; January of 2003 – January of 2004; January of 2004 – January of 2005, and June of 2004 – January of 2005.


6

Student moved out of his foster home in June of 2001, however the move-in law delayed the potential change of responsibility for a year, i.e., July of 2002.


7

While not addressed by the parties, one might assert that this notification requirement applies to the programmatic responsibilities only, and does not apply to the financial responsibilities. Although such is considered, it is not persuasive. Certainly, if a child is to be served, notice is required before an LEA can provide programmatically for that student. Such is not true, although desirable, for financial responsibilities. The regulation 603 CMR 28.03(4) is entitled “Responsibility for students based on residency and enrollment”, and throughout, it couples programmatic and financial responsibility for students. Section (f) authorizes DOE to assign LEAs to take the responsibilities of a “parent’s district” – and under subsection (b) applicable in this case, that entails programmatic and financial responsibility. Section (h) sets out the notification requirements for Section (f) assignments, and makes no reference whether the requirement applies for programmatic and financial responsibility, or just programmatic responsibility. Rather, it states “Upon notification of responsibility for provision of special education to a child under this paragraph …”. Without explicitly limiting the Section (f) notification requirement to programmatic responsibilities, there is insufficient basis on which to find that an LEA can be held fiscally responsible – and the previously responsible LEA can be relieved of its fiscal responsibilities – prior to notification.


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