COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
In Re: Ipswich Public Schools
BSEA # 02-4324
RULING ON MOTION TO JOIN
This Ruling addresses Ipswich Public Schools’ (Ipswich) Motion to Join the Department of Social Services ( Motion to Join ).
Procedural History and Facts .
The procedural history and relevant facts are not in dispute.
Student is fifteen years old (date of birth January 11, 1987). His parents live in Ipswich, MA.
On the basis of information indicating that Student may have sexually assaulted his sister and others, Student’s father obtained a MGL chapter 209A Restraining Order on September 14, 2001, prohibiting Student from going to his home in Ipswich.
On September 27, 2001, the Probate and Family Court, Essex Division, ordered the transfer of the care and custody of Student to the Department of Social Services (DSS). Student continues to be under DSS’s care and custody.
On December 27, 2001, DSS placed Student at the Brandon Residential Treatment Center in Needham, MA. Student is likely to continue residing at the Brandon Residential Treatment Center for at least several more months. At Brandon, Student receives comprehensive, therapeutic services to address his needs. He currently is in need of no additional services from Ipswich.
On May 2, 2002, Ipswich conducted a Team meeting to consider Student’s eligibility for special education and related services. A decision was made by the Team that Student was not eligible.
On May 28, 2002, Student’s Educational Surrogate Parent and Guardian Ad Litem filed with the Bureau of Special Education Appeals (BSEA) a Request for Hearing , contesting Ipswich’s determination that Student is not eligible for special education and related services.
On June 10, 2002, Ipswich filed with the BSEA a Motion to Join the Department of Social Services . On June 17, 2002, DSS filed its opposition to said Motion to Join .
A hearing was held on the Motion to Join on July 9, 2002.
Discussion .
Statutory language, taking effect January 1, 2001, provides the following language regarding the jurisdiction of Massachusetts BSEA Hearing Officers over state agencies (including DSS) :
The [BSEA] hearing officer may determine, in accordance with the rules, regulations and policies of the respective agencies, that services shall be provided by the department of social services, the department of mental retardation, the department of mental health, the department of public health, or any other state agency or program, in addition to the program and related services to be provided by the school committee .1
BSEA joinder rulings have interpreted, in a consistent manner, the underlined language from this legislation. The rulings have concluded that joinder of a human service agency may occur only upon a showing of the need for services from that agency “in addition to” any special education and related services that are to be provided by the school district. If a student’s needs can be met through the special education and related services which are the responsibility of the school district, complete relief can be granted without the need for the human service agency to become a party, and joinder is denied pursuant to BSEA Hearing Rule 1F.2
This interpretation appropriately maintains the school district as the entity with sole responsibility for all those services to which the student is entitled pursuant to state and federal special education law, while permitting joinder where additional services from a state agency may be necessary to ensure that the student will be able to access and benefit from the school district’s special education program and services.3
In the present dispute, it is agreed that Student has serious needs which are currently being addressed by DSS. DSS has care and custody of Student. DSS has placed Student at the Brandon Residential Treatment Center where he receives comprehensive, therapeutic services. No additional services are needed at this time from Ipswich.
Ipswich therefore points out correctly that DSS has extensive information and a particular expertise regarding Student’s needs, DSS is providing services to meet those needs, and DSS will need to continue to play an important role, at least for a period of time, regarding services for Student. Ipswich argues from these facts that DSS is a necessary party to the BSEA proceedings.
DSS does not dispute the importance of its role regarding services for Student and even concedes that were Student to be found eligible for special education services, it may be appropriate for DSS to become a party to any BSEA proceedings. However, DSS does not believe that it is a necessary party to a resolution of the issue currently in dispute – that is, whether Student is eligible for special education and related services. For the following reasons, I agree.
Student’s Request for Hearing is clear on its face (and it was further clarified during a Pre-Hearing Conference on July 9, 2002) that the only relief requested is a determination regarding special education eligibility. Ipswich agrees that, should it be determined that Student is eligible for services, the next step would be for the Team to be re-convened, and only through such a Team meeting would it become known what special education and related services Ipswich would offer Student. Alternatively, were I to determine that Student is not eligible, that would end consideration of these issues, except for any appeal to court.
As explained above, joinder of DSS pursuant to MGL c. 71B, s. 3 requires a determination that services from that agency are necessary in addition to Student’s special education and related services. Any determination of whether services from DSS are necessary and could be ordered by a Hearing Officer will depend on knowing what special education services are being offered by the school district.
In addition, only when a final eligibility determination has been made and any Team meetings and discussions have been completed, will it become known whether there is a dispute between the Student, Ipswich and DSS regarding services from DSS. There will be no need for participation by DSS in a BSEA proceeding if it turns out that there is no dispute regarding any additional services offered by DSS.
Since it is not known what, if any, services are to be offered by Ipswich and since it is not known whether there will be a dispute with DSS regarding its services, the Motion to Join is premature.
Ipswich would nevertheless have DSS joined as a party because of the importance of DSS’s knowledge and expertise relevant to a BSEA determination of eligibility. While the need for information from DSS is significant, I am not persuaded that it requires that DSS be a party with respect to resolution of a dispute regarding special education eligibility. As Ipswich conceded at the Motion Hearing, joinder cannot be justified solely for purposes of discovery. And, Ipswich may seek to obtain information through subpoena of DSS staff if necessary. I conclude that DSS’s knowledge and expertise does not justify joinder.4
Order .
For these reasons, Ipswich’s Motion to Join the Department of Social Services is DENIED.
By the Hearing Officer,
_________________
William Crane
Dated: July 16, 2002
1
Chapter 159, section 162 of the Acts of 2000, amending MGL c. 71B, s. 3 (emphasis supplied).
2
In Re: Boston Public Schools , BSEA # 02453 (July 3, 2002) (joinder denied where no showing that DMH may be found responsible for services that are not the responsibility of the school district); In Re: Auburn Public Schools , BSEA # 02-0983 (May 16, 2002) (joinder of DMR and MRC denied where issue to be decided at hearing will be whether school district has provided FAPE); In Re: Fitchburg Public Schools , BSEA # 02-0038 (May 8, 2002) (joinder permitted where it may be shown, at an evidentiary hearing, that “DMR may . . . be responsible for providing ‘additional services’ that would permit this Student to benefit from a special education program in the least restrictive environment”); In Re: Reading Public Schools , BSEA # 02-3197 (May 3, 2002) (joinder denied where there was “no showing that DMR services in addition to the appropriate education program, are necessary in order to receive FAPE”) (emphasis in original); In Re: Haverhill Public Schools , BSEA # 02-0567, 7 MSER 268, 270 (November 29, 2001) (“DMR would be appropriately joined . . . only if after Haverhill provides the IDEA mandated extended year program, . . . something else may be needed from DMR to ensure that Student is able to benefit from her legally entitled . . . program and services”); In Re: Whitman-Hanson Regional School District , BSEA # 01-4866 (September 28, 2001) (“inquiry will necessarily be whether a free, appropriate public education can be developed, delivered or guaranteed without the participation of the entity sought to be joined. If it cannot, joinder will be allowed”); In Re: Burlington Public Schools , BSEA # 01-4513, 7 MSER 112, 113 (May 29, 2001) (joinder of DMH denied where “Student seeks only implementation of services the School has already agreed to and is obligated to provide”); In Re: Medford Public Schools , BSEA # 01-3941, 7 MSER 82, 85, 90 n. 18 (May 4, 2001) (DMR may be ordered to provide residential services only if Hearing Officer determines that school district may not be found responsible for these services). There are several other BSEA joinder rulings under MGL c. 71B, s. 3, as amended by chapter 159, section 162 of the Acts of 2000, but they are not relevant to the “in addition to” statutory language. I am aware of no judicial decisions regarding joinder under MGL c. 71B, s. 3.
3
E.g., In Re: Haverhill Public Schools , BSEA # 02-0567, 7 MSER 268, 270 (November 29, 2001) (joinder appropriate where “something else may be needed from DMR to ensure that Student is able to benefit from her legally entitled . . . program and services”); In Re: Medford Public Schools , BSEA # 01-3941, 7 MSER 82, 85 (May 4, 2001) (Hearing Officer may order state agency to provide services beyond what is the responsibility of the school district, but “[s]uch an order should be limited to what is necessary to ensure that the federal and state special education obligations to a child are satisfied”).
4
Compare In Re: Greater Lawrence Regional Vocational High School and North Andover Public Schools , BSEA # 99-3370, 5 MSER 112, 113 (September 13, 1999) (the Department of Mental Retardation has “specialized expertise which will assist all the Parties in designing and implementing an appropriate educational program for Student”, with the result that “complete consideration of and action on the Student’s request for additional educational and related services cannot be afforded without the full participation of the Department of Mental Retardation”).