Jay and Taunton Public Schools, New Bedford Public Schools, Mass. Department of Elementary and Secondary Education – BSEA #11-0520



<br /> Jay and Taunton Public Schools, New Bedford Public Schools, Mass. Department of Elementary and Secondary Education – BSEA #11-0520<br />

COMMONWEALTH OF MASSACHUSETTS

DIVISION OF ADMINISTRATIVE LAW APPEALS

BUREAU OF SPECIAL EDUCATION APPEALS

In re: Jay1

BSEA# 11-0520

RULING ON PARENT’S MOTION TO JOIN MASSACHUSETTS OFFICE OF PROBATION

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. In rendering this ruling the Hearing Officer has considered all written documents submitted by the parties, all written argument submitted by the parties, and all of the oral arguments presented by the parties during the motion session on February 4, 2011.

BACKGROUND

Parent originally filed the above hearing request with the BSEA against the Taunton Public Schools (TPS); the New Bedford Public Schools (NBPS); and the Massachusetts Department of Elementary and Secondary Education (DESE). Parent has filed numerous BSEA Appeals against different constellations of parties regarding different issues and over different time periods. The instant appeal, for purposes of this joinder motion, concerns the three month time period between October 19, 2010 and January 25, 2010 (as explained in the next section of this Ruling). Parent seeks a decision that Jay was not provided a free and appropriate public education during this three month time period, and resulting compensatory services/damages, including placement in a residential educational/therapeutic placement. Parent now seeks to join the Office of the Commissioner of Probation (OCP).

BRIEF HISTORY/STATEMENT OF THE CASE

Jay is now a 17 year old special education student who is currently committed to a secure facility of the Massachusetts Department of Youth Services (DYS). On October 19, 2009, as a result of a court order by a Taunton Juvenile Court Judge, Jay, his mother, and a probation officer signed/accepted an Order of Probation Conditions which required Jay to attend the Justice Resource Center (JRC) located in New Bedford, MA on a day basis. Jay continued to live at home with his mother in Taunton but was required to register in the New Bedford Public Schools (NBPS). The JRC is a program of the Administrative Office of the Massachusetts Trial Court, administered by its Office of Community Corrections (OCC). Supervision of juvenile offenders referred to the JRC is performed by the OCC and OCP in accordance with operational agreements and protocols developed by and between these departments. One of the program components of the JRC is educational classes.

During the time period in question, JRC participants attended classes during the school year in a JRC building leased from the city of New Bedford. JRC furnished two NBPS teachers, certified in science and social studies respectively, who provided basic education, GED preparation, and all relevant subject matter according to each student’s grade level. JRC also provided psycho-educational groups, therapeutic groups, life skills/job preparation groups, and substance abuse and anger management groups. Supervised community service was also part of the JRC program.

By January 20, 2010 Jay had committed numerous disciplinary infractions at JRC and notice was filed for him to appear in Taunton Juvenile Court for a Probation Violations Hearing on January 25, 2010. On January 25, 2010 the Judge ordered Jay surrendered/committed to DYS.

STATEMENT OF POSITIONS REGARDING JOINDER OF OCP

Parent’s position is that OCP is an indespensible party to this appeal; that complete relief cannot be granted among those who are already parties; and that OCP has a significant interest relating to the subject matter of this case and is so situated that this appeal cannot be disposed of in its absence. (See BSEA Hearing Rule (1)(J).) Parent contends that Jay was provided no special education services pursuant to his individual education plan (IEP) while at JRC; that JRC attempted to get Parent to sign Jay off of his IEP as a requirement of the JRC program but that Parent refused to do so; and that Jay’s IEP remained in full force and effect.

OCP’s position is that it opposes joinder. OCP argues that the JRC was not responsible for the educational component of Jay’s program; that NBPS controlled the educational portion of the program; that NBPS employed and supervised the two NBPS teachers assigned to teach at the JRC; and that there is no written agreement between OCP/JRC and NBPS suggesting that the JRC was responsible for, or in control of, Jay’s education, while he participated in the JRC program. OCP further contends that there is no statutory authority that transfers the duty to provide IEP services from NBPS to OCP. Finally OCP contends that OCP/OCC/JRC are not executive office agencies [such as DYS, the Department of Children and Families (DCF), the Department of Mental Health (DMH), the Department of Public Health (DPH) or the Department of Developmental Services (DDS)], but rather are part of the trial court/judicial branch of government and therefore cannot be joined as a party to this BSEA appeal.

NBPS’ position is that OCP should be joined to this BSEA appeal. NBPS contends that the OCP/JRC ran the JRC program; that NBPS had no input regarding educational programming; that OCP/JRC wrote the progress reports, educational goals and transitional goals; that Jay was on an IEP requiring special education services which JRC did not provide to Jay; and that “there is no way that OCP is not involved” in this case. NBPS contends that if OCP is not joined to this appeal, NBPS will be precluded from getting necessary information for its defense because OCP, as a non-party, has not provided information voluntarily. (Parent and DESE also argued the lack of cooperation from OCP.)

DESE takes no position regarding OCP’s joinder to this BSEA appeal. However, DESE states that it had no knowledge of any OCP/OCC/JRC programs2 until 2009 and that it does not understand the intent or relationships between the JRC and the various local education authorities (LEAs) which sent students to these JRC programs, or the funding of said programs, because there are no written agreements regarding these programs.

TPS takes no position regarding OCP’s joinder to this BSEA appeal.

RULING

Based upon the documents, and oral and written arguments offered at the motion session, in conjunction with a review of the applicable law, Parent’s Motion To Join the Office of the Commission of Probation is DENIED .

My analysis follows.

Rule (1)(J) of the Hearing Rules for Special Education Appeals provides, in its entirety:

Upon written request of a party, a Hearing Officer may allow for the joinder of a party in cases where complete relief cannot be granted among those who are already parties, or if the party being joined has an interest relating to the subject matter of the case and is so situated that the case cannot be disposed of in its absence. Factors considered in determination of joinder are: the risk of prejudice to the present parties in the absence of the proposed party; the range of alternatives for fashioning relief; the inadequacy of a judgment entered in the proposed party’s absence; and the existence of an alternative forum to resolve the issues.

603 CMR 28.08(3) defines the jurisdiction of the BSEA, and specifies as follows, with regard to the BESA’s jurisdiction over the state agencies:

The jurisdiction of the Bureau of Special Education Appeals over state agencies, however, shall be exercised consistent with 34 CFR §300.154(a). The 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 IEP services to be provided by the School district.

603 CMR 28.02(19) provides, in its entirety: “State agency shall mean a Massachusetts state agency.”

Part III of the Massachusetts General Laws deals with the Massachusetts judiciary, and begins with M.G.L. c.211. M.G.L. c.211 through 211(F) delineates the various courts, judicial commissions and court offices, beginning with the Supreme Judicial Court through the various trial courts. M.G.L. c.211(F) specifically deals with the OCC – Office of Community Corrections – which operates within the office of the chief justice for administration and management of the trial court. The OCC’s purpose is to establish a continuum of community correction programs and services statewide for appropriate offenders. These are sanction program for offenders for whom imprisonment may not be necessary or appropriate (See c.211 F:1, F:2.) Section 211 F:3 provides that any court exercising jurisdiction is authorized to sentence any eligible offender to a community corrections program; the court may dictate the terms and conditions of the sentence in a community corrections program, the sentence to a community corrections program shall be imposed as a condition of probate and the court may modify the sentence of an offender serving a sentence in a community corrections program in the same manner as if the offender had been placed on probation. M.G.L. c. 276 s. 98 provides that the commissioner of probation shall be appointed by the chief justice for administration and management.

I have also appended to this RULING a chart of the Massachusetts Court System obtained at www.mass.gov. As can be plainly seen from this chart, the Office of the Commissioner of Probation is directly connected to the Administrative Office of the Trial Court, operated by the Chief Justice for Administrative and Management.

Based upon the above, I conclude that the OCP, OCC, and JRC are part of the judicial branch of government in Massachusetts. A juvenile court/trial court judge signed the Order of Probation Conditions (accepted by Jay and Parent), which required Jay to attend the JRC. Whether called agency, department or office, the OCP/OCC/JRC are all creatures of the of the trial court. The BSEA is an administrative law agency, and its decisions can be appealed (either to federal district court or) to Massachusetts Superior Court, a department of the trial court. I conclude that the BSEA’s administrative jurisdiction over other state agencies does not extend to the Massachusetts court system and therefore, that I can neither order joinder of a judicial court office to a BSEA administrative law proceeding, nor issue administrative orders binding upon court departments, court offices or court agencies.

Moreover 20 U.S.C. §1415 (K)(6)(A) provides:
(6) Referral to and action by law enforcement and judicial authorities. (A) Rule of construction. Nothing in this part [20 USCS §§ 1411 et seq.] shall be construed to prohibit an agency from reporting a crime committed by a child with a disability to appropriate authorities or to prevent State law enforcement and judicial authorities from exercising their responsibilities with regard to the application of Federal and State law to crimes committed by a child with a disability . Emphasis added.

Similarly 34 CFR 300.535(a) provides:

§300.535 Referral to and action by law enforcement and judicial authorities.

1. Rule of construction. Nothing in this part prohibits an agency from reporting a crime committed by a child with a disability to appropriate authorities or prevents State law enforcement and judicial authorities from exercising their responsibilities with regard to the application of Federal and State law to crimes committed by a child with disability . Emphasis added.

In Commonwealth v. Nathanial N . 56 Mass App. Ct. 200 (2002) the Massachusetts Appeals Court held that a juvenile adjudication did not constitute a change in placement under the Individuals With Disabilities Act (IDEA) and that 20 U.S.C. §1415 (K)(6)(A) specifically prevented the application of the IDEA to the adjudication of a juvenile. Further, in the matter of In re: C.S. , 804 A. 2d 307, 310 (2002) the court ruled that the IDEA does not: “purport to dictate to States how they must run their juvenile justice system.”

Based upon the above cited-statute, regulation, and decisions, I conclude that federal special education law does not prohibit judicial authorities from enforcing their responsibilities, under federal or state criminal law, with respect to crimes committed by special education students on IEPs.

I am not unsympathetic to the argument that OCP has been unresponsive in providing information to the parties an a voluntary basis. However, such a situation does not mandate joinder, and clearly cannot serve to confer jurisdiction over an entity which otherwise does not exist.3

ORDER

Parent’s Motion To Join the Massachusetts Office of Probation is DENIED .

By the Hearing Officer

________________________

Dated:

Raymond Oliver


1

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


2

While this appeal involves only the JRC program in New Bedford, OCP/OCC ran three such programs in Massachusetts. Only one still exists. The New Bedford JRC Jay attended no longer exists.


3

The information sought can be secured via subpoena/subpoena duces tecum.


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