Lawrice v Brockton Public Schools – BSEA # 07-6968



<br /> Lawrice v Brockton Public Schools – BSEA # 07-6968<br />

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL DUCATION APPEALS

LAWRICE1 v. BROCKTON SCHOOL DISTRICT

BSEA # 07-6968

RULING ON PARENTS’ MOTION FOR SUMMARY JUDGMENT AND SCHOOL DISTRICT’S CROSS MOTION FOR SUMMARY DECISION

This ruling is issued in response to Parents’ August 17, 2007 Motion for Summary Judgment. School district opposed the Motion on August 28, 2007 and filed a cross motion for summary decision. The BSEA received Parents’ response to School district’s cross motion on September 26, 2007.2

Lawrice, age 7, has been in the temporary custody of the Department of Social Services since December 14, 2006 through a Care and Protection petition in the School district Juvenile Court3 ; ( see Parents’ May 22, 2007 hearing request). The Parties agree that parents retain educational decision-making authority; ( see P5). Lawrice currently attends school at the Walker Home and School in Needham (Walker) pursuant to Mother’s January 5, 2007 acceptance of an IEP to a cost share agreement between School district and the Department of Social Services that runs until December 12, 2007; ( see P2). As of July 17, 2007 the goal for Lawrice was reunification with Parents with a projected date to return home in January 2008; ( see P5).4

On or about May 22, 20075 Parents filed a hearing request on behalf of Lawrice.6 In that request Parents assert that DSS will dismiss the custody petition and continue to cost share Lawrice’s placement at the Walker School with School district if Parents file a voluntary placement agreement, but that if Lawrice still requires a residential placement in twelve months after signing the voluntary placement agreement DSS must go back to Court to ask for custody. Therefore Parents do not want to sign a voluntary placement agreement. Parents also assert that if the voluntary placement agreement is not signed DSS will pull the funding for the residential portion of the Walker school and DSS has suggested that Parents seek some other funding source for the residential component. Therefore Parents are seeking an order from the BSEA for School district to fund the residential and day components of the Walker placement in the event that DSS does not have custody of Lawrice and if DSS decides to pull funding because the Parents refuse to sign a voluntary placement agreement for her there;( see Parents’ May 22, 2007 hearing request and Parents’ August 21, 2007 motion for summary judgment).7

School district filed a motion to dismiss on June 1, 2007. As grounds for the motion School district asserted that since Parents continue to seek to set aside DSS’s requirement that Parents sign a voluntary placement agreement as a condition for continued funding for Lawrice’s residential placement and are not raising issues regarding the appropriateness of Lawrice’s educational program, the matter should be dismissed. Hearing Officer Byrne noted in her ruling denying Parents’ motion to dismiss that “While references to the actions and regulatory responsibilities of DSS may cloud their claims, fundamentally the Parents are challenging School district’s decision that it was responsible for only the day component of Student’s residential placement at the Walker Home and School. This is a cognizable claim under the BSEA’s broad grant of jurisdiction” and concluded that “Parents’ claim that the Students require twenty-four hour educational programming in order to receive a free appropriate public education is sufficient to survive School district’s Motion to Dismiss for failure to state a claim upon which relief can be granted” ( see Rulings on Motions to Dismiss, Lawrice & school district and Lawrence & school district, BSEA 07-6970, BSEA 07-6968, Byrne).

Lawrice’s matter was reassigned to this Hearing Officer on August 6, 2007; ( see Notice of Reassignment, Erlichman). A Hearing Officer initiated conference call with the Advocate and School district’s attorney occurred on August 14, 2007. At that time the Advocate indicated that Parents are not seeking a determination as to whether Lawrice requires a residential program for educational reasons; ( see Ruling August 14, 2007, Beron, see also Parents’ August 21, 2007 Motion for Summary Judgment). This Hearing Officer ordered Parents to file an amended hearing request listing the issues in dispute, the remedy Parents were seeking from the Hearing Officer and any motions and supporting authority in support of their position: Id.

On August 21, 2007 Parents, through their Advocate, filed a motion for summary judgment. In that motion Parents requested that pursuant to Section 612 (a)(12)(B)(i)8 of the IDEA, the “The Hearing Officer order the School district Public Schools to fully fund the Walker School Program, in the event the residential funds are discontinued by DSS.”, Parents’ August 21, 2007 Motion for Summary Judgment, p. 8; see also p. 1. Parents did not ask that DSS be part of this proceeding. Parents indicated however that if DSS did discontinue funding for the residential portion of Walker School district could then exercise its right to reimbursement through the courts; ( see Parents’ August 21, 2007 Motion for Summary Judgment p. 8, see also IDEA s. 1412 (B)(ii).

The IDEA requires that a state educational agency (SEA) is responsible for ensuring that all educational programs for children with disabilities, including educational programs administered by any other state agency or local agency, meet their obligations to ensure that eligible children with disabilities receive a free appropriate public education (FAPE) in the least restrictive environment; ( see 20 USC s. 1412 (A)).

The Chief Executive Officer of a State9 or his/her designee shall ensure that an interagency agreement or other mechanism for interagency coordination is in effect among the appropriate agencies to ensure that all services that are needed to ensure a FAPE are provided and that those interagency agreements include a clause for the provision of these services during the pendency of any dispute regarding educational services; ( see 20 USC s. 1412 (A)(12)(A). The IDEA requires that these interagency agreements identify or have a method for defining the financial responsibility of each agency for providing services to ensure a FAPE to children with disabilities, provided that the financial responsibility of each public agency shall come before the financial responsibility of the LEA; ( see 20 USC s. 1412 (A)(12) (A)(i)). The interagency agreement must also include the conditions, terms and procedures under which a LEA shall be reimbursed by other agencies for services, settle interagency disputes if they do not fulfill their obligations and provide for interagency coordination of services; ( see 20 USC s. 1412 (A)(12)(A)(ii)), 20 USC s. 1412 (A)(12)(A)(iii), 20 USC s. 1412 (A)(12)(A)(iv)).

If any public agency other than an educational agency is otherwise obligated under Federal or State law, or assigned responsibility under State policy pursuant to subparagraph (A), to provide or pay for any services that are also considered special education or related services (such as, but not limited to, services described in section 602(1) relating to assistive technology devices, 602(2) relating to assistive technology services, 602(26) relating to related services, 602(33) relating to supplementary aids and services, and 602(34) relating to transition services) that are necessary for ensuring a free appropriate public education to children with disabilities within the State, such public agency shall fulfill that obligation or responsibility, either directly or through contract or other arrangement pursuant to subparagraph (A) or an agreement pursuant to subparagraph (C)l . 20 USC s. 1412 (A)(12)(B)(i).

If a public agency other than the LEA fails to provide or pay for the special education or related services, the LEA shall provide for or pay for the services to the child and if it so elects to claim reimbursement from the local agency that should have provided the services and that public agency shall reimburse the LEA pursuant to the terms of the interagency agreement pursuant to the procedures established for reimbursement in the agreement; (see20 USC 1412 (A)(12)(B)(ii)).

Parents maintain that pursuant to these sections if DSS fails to fund the residential portion of Lawrice’s placement at Walker as they are obligated to do pursuant to the cost share agreement that School district must fund the residential portion of the placement and seek reimbursement from DSS.

The purpose of the statute is to ensure that eligible children with disabilities are not deprived of accepted educational services they require if there is a dispute between agencies regarding who is to provide them. However, summary judgment is only appropriate where there is no genuine issue of fact relating to all or part of a claim or defense and the movant is entitled to prevail as a matter of law.” Kourouvacilis v. General Motors Corp ., 410 Mass 706 (1991). The moving party (in this case Parents) bear “the burden of affirmatively demonstrating that there is no genuine issue of material fact on every relevant issue.” Pederson v Time, Inc. 404 Mass. 14, 17 (1989). Massachusetts has adopted the federal standard, under which a defendant (or other party having the burden) may obtain summary judgment if it demonstrates that the opposing party has no reasonable expectation of proving an essential element of that party’s case. M.R. Civ.P 56. F.R.P. 56, Kourouvacilis v. General Motors Corp ., 410 Mass 706 (1991), following Celotex Corp. v. Catrett , 477 U S 317, 322 (1986). To be successful, a moving party need not submit affirmative evidence to negate one or more elements of the other party’s claim. Kourouvacilis v. General Motors Corp ., supra , at p. 716. The burden on the moving party may be discharged by showing that there is an absence of evidence to support the non-moving party’s case. Celotex Corp. v. Catrett , supra , at p. 322. Once the moving party meets its burden, the burden shifts to the non-moving party to show with admissible evidence the existence of a dispute as to material facts. Kourouvacilis v. General Motors Corp ., supra , at p. 711, citing, Godbout v. Cousens , 396 Mass 254, 261 (1985).

When the court (or a Hearing Officer) considers the materials accompanying a motion for summary judgment, “the inferences to be drawn from the underlying facts contained in such materials must be viewed in the light most favorable to the party opposing the motion.” Hub Assocs v Goode, 357 Mass. 449, 451 (1970), quoting United States v Diebold, Inc., 369 U.S. 654, 655 (1962). In addition, “all doubt as to the existence of a genuine issue of material fact must be resolved against the party moving for summary judgment.” Attorney General, et al. v. Robert W. Bailey et al., 386 Mass. 367, 370, quoting Gross v Southern Ry., 414 F.2d 292, 297 (5 th Cir. 1969).

In this matter, DSS’s termination of their custody of Lawrice or their refusal to continue to fund Lawrice’s residential funding for the Walker School is in dispute. Parents’ exhibit from Lawrice’s attorney only says that someone from DSS has informed someone from his office that it will not fund the residential cost of Lawrice’s placement at the Walker School if DSS does not have legal custody of the children; ( see P1). DSS has temporary legal custody of Lawrice; ( see P5, P6, P8). Parents have produced no evidence that DSS would discontinue custody or ask Parents to sign a voluntary placement agreement. The evidence Parents produced from DSS indicates that as of July 2007, DSS had custody and did not anticipate that custody status would change at that time and that DSS was considering requesting an educational advocate for the children but had not at that time made a decision (P8). Parents have produced no current information from DSS nor have they requested that DSS be a party or in any way participate in this action.10 Therefore Parents’ motion for summary judgment cannot survive.

In addition, even if Parents had established by a preponderance of the evidence that DSS was to terminate funding Parents have relied on a section of a statute that does not appear to apply. 20 USC s. 1412 (A)(12)(B)(ii) states:
(ii) REIMBURSEMENT FOR SERVICES BY PUBLIC AGENCY- If a public agency other than an educational agency fails to provide or pay for the special education and related services described in clause (i), the local educational agency (or State agency responsible for developing the child’s IEP) shall provide or pay for such services to the child. … (emphasis added).

Parents have not met their burden in establishing that the residential services DSS is providing under a cost share agreement are special education or related services. Parents, in their motion, state that they agree with School district’s IEP that calls for a cost shared placement for the Walker School, in which School district pays for the educational day placement and DSS pays for the residential services11 ; ( see Parents’ August 21, 2007 Motion for Summary Judgment p. 2, P2). Documents submitted by Parents indicate that Lawrice has experienced severe and repeated sexual abuse by a perpetrator that was a friend of the family who baby-sat for Lawrice and her brother during a six-month period; that she has threatened suicide and been assaultive, had run away from home on two occasions and displays self-injurious and sexualized behavior ( see P3). School district indicates that DSS has placed Lawrice residentially for clinical reasons. Parents have presented no evidence from DSS or others that Lawrice is attending the Walker residential program to meet special education needs; having indicated that they do not have any concerns regarding the current placement as being appropriate and that the placement is not in dispute; ( see Record, see also Parents’ August 21, 2007 Motion for Summary Judgment p. 2).

If Lawrice did require residential services for educational reasons, the school district, as Lawrice’s LEA, would be obligated to develop an IEP for a residential placement and fund it even if protective issues also exist; ( See e.g. Abrahamson v. Hershman , 701 F.2d 273 (1983); David D. v. Dartmouth School Committee , 775 F2d 411 (1985), Mohawk Trail Regional School District v. Shaun D. , 35 F. Supp. 2d 34 (1999). Hearing Officer Byrne denied School district’s previous motion to dismiss because Parents have the right to request a hearing to determine if Lawrice requires a residential program for educational reasons. However, Parents are not seeking a determination as to whether Lawrice requires a residential program for educational reasons. Parents have stated in their motion for summary judgment that they wish the Hearing Officer to decide pursuant to 20 USC s. 1412 (A)(12)(B) (ii) that School district is responsible to fund Lawrice’s residential program if DSS does not do so. Based on this issue, Parents’ Motion for Summary Judgment is DENIED.

However, School district’s Motion for Summary Decision is granted. The issues that Parents have presented are not ripe for review. At this juncture it is not known whether DSS will cease to fund a residential placement, whether DSS will recommend, or the Court will order that custody be continued, and if custody is returned to Parents or whether Lawrice will continue to require a residential program at that time.12

In addition this matter must be dismissed because Parents have agreed that the placement is not in dispute. As such School district’s Motion for Summary Decision is Granted. Therefore this matter is dismissed with prejudice.

By the Hearing Officer,

Joan D. Beron

Dated: October 10, 2007


1

This decision has been modified for public dissemination. The student’s name is a pseudonym and all information that could reasonably lead to the identification of the student has been rephrased or removed. This decision is not the “official record” decision.


2

During a conference call conducted on August 14, 2007 the Hearing Officer specified that Parents’ motions must be postmarked by August 17, 2007; that School district’s responses to Parents’ motions and any motions that School district filed would be postmarked by August 29, 2007 and that any opposition to School district’s motions would be filed no later than September 27, 2007; see Order August 14, 2007. Parents’ motion for summary judgment is dated and sent August 16, 2007 and was received by the BSEA on August 21, 2007. School district’s opposition was dated and sent August 28, 2007 and received on August 29, 2007. Both met the time requirements set within the order. On September 14, 2007 Parent filed a motion to extend the time to respond to the motion. On that day the Hearing Officer granted Parents’ motion extending the time to respond to September 24, 2007; see August 14, 2007 order and order amending the date issued on September 21, 2007. The Hearing Officer received a faxed response on September 24, 2007; however the copy was illegible. A legible motion was received by mail on September 26, 2007. The response is considered timely.


3

While Lawrice and her brother were in the custody of Parents, a family friend who babysat for the children daily for a six-month period repeatedly sexually abused Lawrice; ( see P3).


4

Lawrice’s brother had an earlier reunification date in July 2007; ( see P5). Current permanency planning for Lawrice is unknown. Parents have not asked DSS to be a party to this action nor have they provided current information regarding DSS’s goals for Lawrice in their documentation in support of its motion for summary judgment.


5

Parents previously filed a related matter in April 2007. In that request Parents sought to challenge DSS’s regulatory requirement that Parents sign a voluntary placement agreement in order to secure DSS funding for a cost-shared special education placement. Hearing Officer Crane granted DSS’s motion to dismiss finding that the BSEA does not have jurisdiction to interpret DSS regulations and therefore lacked the authority to grant the relief sought by Parents; ( See Rulings on Motions to Dismiss School district & Department of Social Services, BSEA 07-5798, BSEA 07-5841, Crane).


6

The hearing request was also filed on behalf of Lawrice’s brother Lawrence. Both siblings are attending the same school under cost share agreements but have different educational needs and different IEPs. Lawrence’s matter is assigned a separate docket number (07-6970) and is assigned to a different hearing officer.


7

School district filed its response and a motion to dismiss on May 31, 2007 Hearing Officer Byrne denied the motion to dismiss.


8

The correct cite for the statute is 20 USC s. 1412(A)(12)(B) (i). The section 612 cite was valid prior to reauthorization.


9

In Massachusetts this is the Governor or his designee.


10

Parent also filed a transcription of a court proceeding at the Juvenile Court that was produced from a tape. It is unknown who made the tape or if the tape was complete. There are portions of the tape that are indiscernible. The attorney for Parents and the children are making assertions that DSS can cost share a placement absent custody. It does not appear that anyone from DSS was present at the proceeding and the transcript does not indicate that anyone from DSS participated in the conversation before the Court. The transcription was completed on July 13, 2007. It is unclear when the Parties went to Court.


11

If DSS has placed a student of whom they have care or custody in a residential placement, the placement is made pursuant to the authority of DSS to determine where a child lives and is not considered an educational placement; see DOE Advisory SPED 2004-4. If DSS has made a clinical determination in accordance with DSS standards that the child should be placed in a residential school, DSS will share the residential school costs. School districts will be responsible for either 50% of the residential school tuition, or, in the alternative, the day portion of the special education residential school costs as determined by the Operational Services Division (OSD) of the Executive Office of Administration and Finance; Id. DSS’s clinical decisions regarding whether to ask for a voluntary placement agreement or seek custody, and placement decisions are not issues that the BSEA has jurisdiction to decide nor can the BSEA order LEAs to fund residential placements that are not educational.


12

If the matter becomes not speculative DSS would be bound by the inter-agency cost sharing agreement and the cost-shared IEP; ( see 110 CMR 7.402(3). Parent has indicated that it is aware of the recourse it has if DSS does discontinue funding for Lawrice’s residential placement including but not limited to asking the BSEA for a stay-put order pending resolution of the matter; taking the matter to Juvenile Court or obtaining an injunction; see Parents’ August 21, 2007 Motion for Summary Judgment p. 3.


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