Heidi and Walpole Public Schools – BSEA # 11-4328



<br /> Heidi and Walpole Public Schools – BSEA # 11-4328<br />

COMMONWEALTH OF MASSACHUSETTS

Division of Administrative Law Appeals

Bureau of Special Education Appeals

In re: Heidi1 and Walpole Public Schools

BSEA# 11-4328

RULING ON MOTION TO DISMISS THIS APPEAL

This ruling is rendered pursuant to M.G.L. Chapters 30A and 71B; 20 U.S.C. §1400 et seq.; 29 U.S.C. §794; and the regulations promulgated under these statutes.

INTRODUCTION

This is a dispute over a Local Educational Agency (LEA) Assignment. Walpole Public Schools (Walpole) brings this appeal against the Massachusetts Department of Elementary and Secondary Education (MDESE); the Taunton Public Schools (Taunton); and the Westwood Public Schools (Westwood). Westwood has filed a Motion to Dismiss Walpole’s Appeal.

BACKGROUND

Heidi is a student with significant special education needs who currently attends the Kolburne School in New Marlborough, MA as a residential education student. Heidi’s temporary co-guardians resided in Walpole, MA and Westwood, MA. On October 25, 2010 the Norfolk Probate and Family Court (Judge Phelan) removed the co-guardians and appointed Daniel Smith to be Heidi’s guardian. Mr. Smith resides in Taunton, MA. On November 30, 2010 the MDESE, in an Updated Assignment of School District Responsibility, assigned programmatic special education responsibility for Heidi to Taunton. MDESE then applied M.G.L. c.71B s.5, the move-in law, designating Walpole and Westwood as the former communities of residence (FCR) and Taunton as the new community of residence (NCR) effective October 25, 2010, the date Heidi’s guardian’s residence changed from Walpole and Westwood to Taunton. Pursuant to the provisions of the move-in law, MDESE: 1) assigned fiscal responsibility for Heidi’s special education residential placement to the FCRs, Walpole and Westwood, for the balance of the fiscal year ending June 30, 2011; and 2) assigned the NCR, Taunton, fiscal responsibility for Heidi’s special education residential placement effective July 1, 2011 onward.

In January 2011 Walpole appealed MDESE’s LEA Assignment to the BSEA. Walpole contends that MDESE should not have applied the move-in law and that Taunton should have been assigned both programmatic and fiscal responsibility for the cost of Heidi’s special education residential placement as of the date of the appointment of the new guardian (October 25, 2010) who lives in Taunton.

Westwood then filed a Motion To Dismiss Walpole’s Appeal (MTD) contending that the move-in law does apply and that MDESE’s LEA Assignment was correct. However, Westwood noted that if the BSEA should decide that the move-in law does not apply that Westwood is in the same position as Walpole i.e., if Walpole is not fiscally responsible from October 25, 2010 to June 30, 2011 then neither is Westwood. Walpole then filed an Opposition to Westwood’s MTD.

Taunton filed a Response in Partial Support and in Partial Opposition to Westwood’s MTD. Taunton supports Westwood and MDESE that the move-in law applies and, therefore, Walpole and Westwood retained fiscal responsibility for Heidi’s special education residential placement from October 25, 2010 to June 30, 2011. However, Taunton also contended that MDESE incorrectly determined Taunton to be the NCR and to be fiscally responsible for Heidi’s residential education placement after July 1, 2011 based upon an erroneous determination that Mr. Smith was appointed Heidi’s guardian in his individual capacity. Taunton raised the new issue that Mr. Smith was appointed as Heidi’s guardian in his professional capacity as the Executive Director of the Advocacy Resource Center (ARC) of Greater Fall River and the ARC of New Bedford, both of which maintain separate, non-profit corporate identities within Massachusetts. Therefore, Taunton contends that it has no programmatic or fiscal responsibility for Heidi’s special education residential placement.

What followed was a plethora of motions and responses to motions-partially in support of various positions and partially in opposition to various positions, clarifications, and modification of positions. Pre-hearing conferences were held and telephonic motion sessions were scheduled. There were numerous postponement requests from various parties. Taunton filed for reconsideration with MDESE. A telephonic motion session with the BSEA Hearing Officer eventually took place on March 18, 2011 and oral arguments were made. However, all parties agreed that all information had not been fully developed and that supplementation was necessary. Supplemental written arguments and written affidavits were filed by the parties. Contemporaneously, court action was filed in April 2011 with the Norfolk Probate and Family Court seeking Clarification/Relief from Judge’s Phelan’s October 25, 2010 Order naming Mr. Smith as Heidi’s guardian. Judge Phelan held hearings on April 24 and 28, 2011. On June 27, 2011 Judge Phelan issued a Decision and Memorandum which made it crystal clear that he had appointed Mr. Smith to be Heidi’s guardian in his individual capacity. Taunton notified the BASEA that it would assume fiscal responsibility for Heidi’s special education residential placement on July 1, 2011.

A pre-hearing conference call (PHCC) was attempted on July 27, 2011 but one of the attorneys was unable to participate due to extended BSEA proceedings in another matter. A final PHCC took place on August 16, 2011. All parties agreed that the guardianship/prospective LEA Assignment issue was now resolved with Taunton being both programmatically and fiscally responsible for Heidi’s special education residential placement from July 1, 2011 onward. All parties also agreed that the only remaining issue was the application/non-application of the move-in law.

ISSUE

Was MDESE correct in applying the move-in law the instant situation where the guardian’s residence moved pursuant to a court appointment of a new guardian but where no actual physical move occurred?

STATEMENT OF POSITIONS

Walpole’s position is that MDESE erroneously applied the move-in law since neither Heidi’s actual parents nor her legal guardian physically moved from one district to another during the course of the fiscal year. Walpole contends that the appointment of a new guardian, either temporary or permanent, is a change in custody status but does not trigger the application of the move-in law because neither the student nor the guardian has relocated his residence. Therefore, effective October 25, 2010, the date Heidi’s guardianship changed and Mr. Smith was appointed, MDESE should have assigned to Taunton both programmatic and fiscal responsibility for Heidi’s special education residential placement. Walpole cites City of Salem v. BSEA 444 Mass 476 (2005) and East Longmeadow Public Schools v. DOE & DSS 9 MSER 55 (2003); BSEA# 03-1917 & 03-1919.

Westwood’s position is that Walpole’s appeal should be dismissed on the grounds that the move-in law applies and MDESE’s LEA assignment is correct. Westwood contends that because Heidi’s residence is determined by her guardian’s residence, Heidi is deemed to have moved to the community where her guardian resides. Westwood states that the legislature’s purpose in enacting the move-in law was to avoid imposing significant financial obligations on a NCR which has been unable to budget for a child’s special education residential needs while a FCR would have budgeted for those needs. As FCRs, both Westwood and Walpole budgeted for the costs of Heidi’s residential education placement, while the NCR, Taunton had no opportunity to do so. Westwood cites Cohasset School Committee v. Massachusetts Bureau of Special Education Appeals and Norton School Communitte , Plymouth Superior Court Civil Action No. 06-00087 (2007) and Cohassett Public Schools v. Department of Education and Norton Public Schools , 12 MSER 8, (2005); BSEA# 05-3397 (hereinafter collectively Cohasset).

Taunton’s position is that it supports the positions’ of Westwood and MDESE that the move-in law applies whenever there is a change in the school district of residency. Taunton contends that the move-in law does apply to situations in which no physical relocation of any persons, including student, parent or any person who is or has been named legal guardian of the student has occurred, but where a change in school district responsibility occurs by virtue of the court appointment of a new or different legal guardian for the student i.e., a legal move by operation of law.

MDESE’s position is that it properly applied the move-in law to the instant situation. MDESE contends that although neither Heidi nor her parents moved, Heidi’s place of legal residence moved from Walpole and Westwood to Taunton when Taunton resident, Mr. Smith, was appointed her legal guardian. MDESE states that the appointment of Mr. Smith as Heidi’s guardian resulted in a change of fiscal responsibility for Heidi’s special education residential placement from one school district to a different school district. MDESE states that it has consistently applied the move-in law whenever an event occurs which results in a change or move of fiscal responsibility for a student in a private day or residential placement from one school district to a new school district. MDESE contends that for purposes of M.G.L. c.71B s.3 and s.5, Heidi legally moved to a different school district.

All parties have agreed that this appeal may be decided on the documents and legal arguments submitted pursuant to the MTD since there is no dispute regarding any of the facts in this case but purely a dispute as to the application of the move-in law based upon these undisputed facts.

RULING

Based upon the written documentation submitted by the parties, the thoughtful legal arguments advanced by all of the parties, and a review of the applicable law, I conclude that MDESE correctly applied the move-in law to this case. Therefore Westwood’s MTD Walpole’s Appeal is GRANTED .

My analysis follows.

M.G.L. c.71B s.3 provides, in pertinent part:

In accordance with the regulations, guidelines and directives of the department issued jointly with the departments of mental health , mental retardation, public health, youth services, and the commission for the blind and the commission for the deaf and hard of hearing and with assistance of the department, the school committee of every city, town or school district shall identify the school age children residing therein who have a disability , as defined in section 2, diagnose and evaluate the needs of such children, propose a special education program to meet those needs, provide or arrange for the provision of such special education program , maintain a record of such identification, diagnosis, proposal and program actually provided and make such reports as the department may require. Emphasis added.

M.G.L. c. 71B s.5, the move-in law, provides, in pertinent part:

Any school committee which provides or arranges for the provision of special education pursuant to the provisions of section three shall 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;…. Emphasis added

…… if a child with disability for whom a school committee currently provides or arranges for the provision of special education in an approved private day or residential school placement , including placement in a pediatric nursing home, pursuant to the provisions of section three, or his parent or guardian, moves to a different school district on/or after July first of any fiscal year, such school committee of the former community of residence shall pay the approved budgeted costs, including necessary transportation costs, of such day or residential placement, including placement in a pediatric nursing home, of such child for the balance of such fiscal year; provided, however that if such move occurs between April 1 and June 30, such school committee of the former community of residence shall pay such costs for the balance of the fiscal year in which the move occurred as well as for the subsequent fiscal year. Emphasis added:

603 C.M.R 28.10 provides, in pertinent part:

28.10: School District Responsibility
(1) General provisions. School districts shall be programmatically and financially responsible for eligible students based on residency and enrollment. …

(3) School district responsibility based on residence of parent(s) or legal guardian. The school district where the parent(s) or legal guardian resides shall have both programmatic and financial responsibility under the following circumstances:

(b) When a student whose IEP require s an out of district placement lives and receives special education services at a special education residential school . Emphasis added.

M.G.L. c. 71B s.3 makes it clear that the school district where a student resides is responsible for providing and funding any special education program and/or services required by that student. M.G.L. c. 71B s.5, the move-in law, reinforces the residency provisions of s.3 by specific reference to s.3 and by utilizing the same statutory language but also including the term guardian. 603 CMR 28.10, promulgated to ensure the implementation of M.G.L. c. 71B s.3 and s.5, make it obvious that: 1) residency determines which school district is programmatically and fiscally responsible for a student; and 2) that in a situation where a student lives and is educated in at a special education residential school that the school district where the parent or guardian resides has both programmatic and fiscal responsibility for that student. In sum, residency of the parent or guardian is the overriding factor determining which LEA is responsible for the provision of and payment for a student’s special education.

A minor child cannot move on his own. A child moves with his parent or guardian. It is axiomatic that if Mr. Smith had already been Heidi’s court appointed guardian and Mr. Smith physically moved, there would have been no dispute that the move-in law would apply. The sole question is whether Heidi’s court ordered legal move to a new guardian residing in a different school district constitutes a move pursuant to the move-in law.

Unfortunately, in neither the statute nor the applicable regulation is there any adjective further defining the word move. Further, as both Walpole and MDESE have represented, there are no cases which have dealt with this specific issue. Therefore, this is a case of first impression.

City of Salem v. BSEA , cited by Walpole above, dealt with the move-in law but dealt with the issue of notice, and held that where notice is not mentioned a notice provision could not be imputed to the move-in law. Similarly East Longmeadow v. DOE and DSS , also cited by Walpole above, dealt with the issue of notice. In that case MDOE (now MDESE) assigned East Longmeadow to be the responsible school district for two brothers in DSS custody because the mother had moved out of state and the father resided in East Longmeadow. There was no move by the brothers or the father. MDESE did not apply the move-in law nor did East Longmeadow’s appeal argue that the move-in law applied.2 East Longmeadow argued that, by analogy, East Longmeadow’s lack of notice was akin to what the move-in law was designed to correct. The Hearing Officer’s reference to the move-in law had nothing to do with the determination of or outcome of that case.

The case closest to the current situation is Cohasset , cited above. In that case, the BSEA Hearing Officer found that prior to the start of a fiscal year the student had a sole guardian, an attorney residing in Cohasset; but after the start of the fiscal year a co-guardian, student’s biological father, who resided in Norton, was appointed as co-guardian. The Hearing Officer determined that the school district where the sole legal guardian resided, the attorney residing in Cohasset, was the FCR and solely fiscally responsible for the student through the end of the fiscal year in which the co-guardian was appointed. Thereafter both school districts, Cohasset and Norton, became jointly fiscally responsible for the student as the NCRs. During all of the time period involved, neither the attorney/guardian nor the father/guardian nor the student moved. Cohasset appealed the BSEA decision. In a comprehensive decision the Massachusetts Superior Court (Plymouth, Judge McIntyre) affirmed the BSEA Hearing Officer’s decision.3

It is unrebutted that the purpose of the move-in law is to avoid burdening NCRs with the unanticipated costs of a move (of parents or guardians) where the student is in a private day or residential educational placement, by holding FCRs, which did have the opportunity to budget for these costs fiscally responsibly for an additional period of time. MDESE’s application of the move-in law to the facts of this case clearly furthers the purpose of M.GL. c.71B s.5. The Massachusetts Supreme Judicial Court (SJC) has held that a “state administrative agency in Massachusetts has considerable leverage in interpreting a statute it is charged with enforcing” and that “all rational presumptions” must be made in favor of the regulations promulgated by that agency. Berrios v. Department of Public Welfare 411 Mass 587, 595 (1992). Further, it is well settled that an: agency’s interpretation of its own regulation and statutory mandate will be disturbed on review only if the interpretation is patently wrong, arbitray, whimsical or capricious. Brookline v. Commissoner of the Department of Environmental Quality Engineering 398 Mass 404, 410 (1986).

Similarly, the SJC has ruled that:

An agency’s construction of it own regulation… is one to which considerable deference is due. Northbridge v. Natick 394 Mass. 70, 74 (1985).

Further, the SJC has ruled that statutes must be construed in accordance with:
the intent of the Legislature ascertained from all of its words, construed by the ordinary and approved use of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main objective to be accomplished, to the end that the purpose of its framers may be effectuated. Commonwealth v. Galvin 388 Mass 326, 328 (1983).

Finally, the SJC has long held that:

If a liberal, even if not literally exact interpretation of certain words is necessary to accomplish the purpose indicated by the words as a whole, such interpretation is to be adapted, rather than one which will defeat that purpose. Lehan v. North Main Street Garage , 312 Mass. 547, 550 (1942).

Based upon the above, I conclude that MDESE’s application of the move-in law to include the court ordered legal move of Heidi’s residence owing to the appointment of a new guardian in a new residence to be an eminently reasonable interpretation of M.G.L. c. 71B s.5 and 603 CMR 28.10(3)(b), and in furtherance of the specific statutory purpose for which the move-in law was enacted. I conclude that a move can be de jure as well as de facto.

ORDER

1. Westwood’s MTD is GRANTED .

2. BSEA# 11-4328 is DISMISSED .

BY the Hearing Officer

________________________
Dated:

Raymond Oliver


1

Heidi is a pseudonym chosen by the Hearing Officer to protect the privacy of the student in publicly available documents.


2

Indeed, if the move-in law had been an issue in East Longmeadow, the former community of residence where the mother had previously resided would have had to have been a party to the case, which it was not.


3

This decision also dealt with whether the biological father’s residence in Norton should take precedence over the attorney/guardian’s residence in Norton. Such issue is not before me in the instant case.


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