Lincoln Sudbury Public Schools and Lincoln Sudbury Regional School District, Dept. of Elementary and Secondary Education and Lexington Public Schools – BSEA # 11-9766



<br /> Lincoln Sudbury Public Schools and Lincoln-Sudbury Regional School District, Dept. of Elementary and Secondary Education and Lexington Public Schools – BSEA # 11-9766<br />

COMMONWEALTH OF MASSACHUSETTS

DIVISION OF ADMINISTRATIVE LAW APPEALS

SPECIAL EDUCATION APPEALS

In Re: Lincoln Sudbury Public Schools and Lincoln-Sudbury Regional School District, Dept. of Elementary and Secondary Education and Lexington Public Schools

BSEA #11-9766

DECISION BASED ON WRITTEN SUBMISSIONS

This decision is issued pursuant to the Massachusetts special education statute, M.G.L. c. 71B (“Chapter 766”), the Massachusetts Administrative Procedures Act, M.G.L. c. 30A, and regulations promulgated under those statutes.

On June 29, 2011, Lincoln–Sudbury Public Schools and Lincoln–Sudbury Regional School District (Lincoln) filed a timely appeal of an Assignment of School District Responsibility (Assignment) issued by the Department of Elementary and Secondary Education (DESE), and a June 29, 2011 Motion to Consolidate said matter with BSEA #11-8881, involving a related matter. Lincoln challenged DESE’s finding that Lincoln had sole financial responsibility for Student’s special education program.

On June 20, 2011, Lincoln filed a Motion to Join Lexington Public Schools in a related matter. In its brief regarding the DESE assignment of school district responsibility, Lexington objected to Joinder.

On July 5, 2011, the Parties agreed to have a decision issued on the basis of written submissions, a request granted via Order issued on July 6, 2011.1

Following a short request for postponement on submission of documents filed by Lexington Public Schools (Lexington), the Parties submitted their statements, arguments and accompanying documents on August 8, 2011. As such the record closed on that date.

The official record of this hearing consists of the submissions listed above, together with multiple attachments/ exhibits submitted by Lincoln and Lexington. The DESE submitted only a written argument/ brief. .

ISSUES:

Whether the DESE’s determination that Lincoln is fiscally and programmatically responsible for Student’s educational placement is correct?

1. Whether Lexington should be joined as a necessary party to BSEA # 11-8881?

POSITION OF THE PARTIES:

Lincoln’s Position:

Lincoln challenges DESE’s assignment of programmatic and financial responsibility issued in June 2011, finding Lincoln solely responsible for Student’s education, and seeks reversal of said assignment. Lincoln argued that DESE should have applied 603 CMR 28.10 (2)(a)(2) to the facts of this case, thereby finding both Lincoln and Lexington jointly responsible for Student’s out–of–district education.

Lincoln states that Student’s Parents live in two different towns in Massachusetts. According to Lincoln, Student lives at the residential Franklin Perkins School (Perkins) located in Lancaster, Massachusetts, and when he comes home he returns equally to the homes of both of his parents. Lincoln’s argument relies on information and belief that Student lives equally in each of his parents’ homes. Lincoln argues that under George H. & Irene J. Walker Home for Children v. Town of Franklin , 416 Mass. 291, 296 (1993), Student’s residence is determined by the home or homes to which he returns when he does not live at Perkins. Lincoln also relies on a decision issued by the BSEA in 2007, In Re: Appeals of Massachusetts Department of Education’s Assignment of Programmatic and Fiscal Responsibility , BSEA # 07-7201 (Crane, November 9, 20117). Lincoln states that 603 CMR 28.10 (2)(a)(2) places responsibility equally on both Mother’s and Father’s communities. As such, Lincoln argues that Lexington and Lincoln should share responsibility for Student’s residential placement and seeks reversal of DESE’s LEA Assignment.

DESE’s Position:

DESE asserts that Lincoln bears sole fiscal responsibility for Student pursuant to 603 CMR 28.10 (4) (applicable in cases where students are in living situations other than 28.10 (2) or 28.10 (3)), and 603 CMR 28.10 (8)(c)(5). Relying on Walker , 416 Mass. 291, 296 (1993), DESE explains that GL 71 B §3 gives it authority to promulgate regulations addressing school district responsibility for a student’s education based on residence, which provide additional interpretation for the term “residing therein” in situations where defining the term may not be obvious, such as those involving split families. According to DESE, under both the Massachusetts Special Education Regulations and Walker , Lincoln is solely responsible for Student as stated in its June 27, 2011, assignment of school district responsibility.

Lexington’s Position:

Lexington argued that DESE’s application of 603 CMR 28.10 (8)(c)(5) was correct and consistent with Walker , 416 Mass. 291, 296 (1993). Furthermore, while Father moved into Lexington sometime after Parents’ separation/divorce, Lexington has never provided regular or special education services to Student. Moreover, Mother has sole physical custody of Student as well as educational decision–making authority under the divorce decree. Therefore, Lexington argues that Lincoln is solely responsible for Student’s education as DESE correctly found.

FINDINGS OF FACT:

1. Student is a fifteen-year-old child with disabilities who has attended the Dr. Franklin Perkins School (Perkins) in Lancaster, Massachusetts, as a residential student since June 28, 2010. His eligibility for special education and related services is not in dispute.

2. Prior to attending Perkins, Student received his education, including special education services in Lincoln from 2006 through the end of the 2009-2010 school year (Lexington E-5).

3. Student’s Lincoln Public Schools Team convened on June 22, 2010 and drafted an IEP, covering the period from June 2010 through June 2011, calling for a partial inclusion program in Lincoln. Parent rejected this IEP on July 28, 2010 (Lexington E-5).

4. During the past five years, Student’s mother has lived in Lincoln, Massachusetts, and his father in Lexington, Massachusetts (Lexington E-1 & E-4).

5. Mother has sole physical custody of Student and is solely responsible for the decisions regarding Student’s education pursuant to Parents’ Stipulation for Temporary Orders filed in Probate Court in 2010, in connection with Parents’ divorce (Lexington E-9).

6. Student was unilaterally placed at Perkins by his Mother for the 2010-2011 school year. Prior to being placed at Perkins, he lived in Lincoln with mother four days per week and alternating weekends, and stayed with Father on Wednesday and alternating weekends (Lexington E-4 & E-7).

7. While Student has been attending Perkins, he spends every weekend at the home of one of his parents, alternating weekends with each parent. He also alternates weekday overnight stays with each parent. Since he started attending Perkins, Student shares equal time at the homes of his parents (Lexington E-7A).

8. Each parent maintains a room, clothing, medications and personal possessions for Student at his or her home. Student’s sibling spends the weekend with Student at whichever of the parent’s home Student is staying (Lexington E-7A).

9. On June 23, 2011, DESE issued an Assignment of School District Responsibility finding that Lincoln bore sole financial and programmatic responsibility for Student. In reaching this conclusion, DESE relied on 603 CMR 28.10 (2) which states that “the school district where the student resides shall have both programmatic and financial responsibility under the following circumstances: (a) when students live with their parent” (Lexington E-2).

10. Lincoln requested a review of DESE’s LEA Assignment and on June 27, 2011, DESE issued a corrected letter this time relying on 603 CMR 28.10 (4) and 603 CMR 28.10 (8)(c)(5), affirming its previous finding that programmatic and fiscal responsibility for Student rested with Lincoln (Lexington E-3).

11. According to Linda Chase, Director of Student Services in Lexington, prior to June 2011, Lexington had never provided special education, related services or transportation to Student, and had never been invited to participate in a Team meeting regarding Student’s education. Lexington was also not notified of Student’s unilateral placement in June 2010 (Lexington E-8).

12. On June 29, 2011, Lincoln requested a hearing pursuant to 603 CMR 28.10(9) appealing DESE’s assignment of sole responsibility for Student.

CONCLUSIONS OF LAW:

I feel it necessary to note at the outset that were the instant LEA assignment appeal to have been decided within the context of the hearing on the merits in BSEA #11-8881 a very different outcome may have ensued. That is, the regulation(s) governing school district responsibility in the case of an IEP or BSEA decision calling for a residential placement differs significantly from that of regulations governing LEA responsibility when an in-district IEP is in effect.

However, based upon the Parties’ request that the LEA assignment appeal be decided in advance of the hearing on the merits in BSEA # 11-8881, I turn to my analysis and determination based on the facts of this case as they currently exist.

In Massachusetts, the authority to resolve issues regarding residency and school district responsibility for special education students rests with the DESE under the Massachusetts Special Education Regulations. 603 CMR 28.10. Appeals of said assignments by DESE are heard by the Bureau of Special Education Appeals under 603 CMR 28.10(9). It is pursuant to this authority that Lincoln disputes DESE’s assignment of fiscal and programmatic responsibility for Student and appeals DESE’s determination of June 27, 2011.

In general, school age children in Massachusetts have a right to attend public school in the town where they reside. MGL c. 76 §5. As such, a school district’s financial and programmatic responsibility for a student is based on that student’s residency within the district and enrollment. 603 CMR 28.10(1). Furthermore, MGL c. 71B §3 charges each school district with the responsibility to identify school age children with special education needs within their district. In this respect, the Massachusetts special education regulations provide additional guidance regarding a district’s financial and programmatic responsibility for an eligible student. As stated earlier, specific guidance is found under the Massachusetts Special Education Regulations.

Further guidance regarding residency is also found in George H. & Irene L. Walker Home for Children v. Town of Franklin , 416 Mass. 291, 296 (1993). This case addressed whether financial responsibility for a student’s residential placement should be shared between two different municipalities for a student whose parents were divorced, lived in different municipalities, and the student never resided in the father’s district. Relying on In Re: Boston v. Board of Educ ., 392 Mass. 788, 792-793 (1984), the Court in Walker explained that

Section 3 and 5 were construed as clearly imposing the burden of paying for a special education program on the municipality (or school district) where the child needing the program resides. [Note 7] It is not contended that John and James ever “resided”, within the meaning of G.L. c. 71B, in Franklin. “ A person’s domicile is usually the place where he has his home.’ [Restatement (Second) of Conflict of Laws Section 11 comment a (1971).] ‘Home is the place where a person dwells and which is the center of his domestic, social and civil life. ’ Id. at Section 12.” Dane v. Registrars of Voters of Concord , 374 Mass. 152, 161-162 (1978). Hershkoff v. Registrars of Voters of Worcester, 366 Mass. 570, 576 (1974). A person can have only one domicil. Dane v. Registrars of Voters of Concord, supra at 161. The domicil, or residence, of a minor child generally is the same as the domicil of the parent who has physical custody of the child . Gil v, Servizio , 375 Mass. 186, 189 (1978). See Teel v. Hamilton-Wenham Regional Sch. Dist. , 13 Mass. App. Ct. 345, 348-349 (1982) (determining a father’s domicil for purpose of resolving a dispute over where children could attend public school). (Emphasis supplied).

Under Walker , the place where a student lives, where he dwells and which is the center of his social life, which is generally with the parent who has physical custody of the child, is the student’s residence. With this guidance I turn to the facts in the case at bar and find that at the time Student entered Perkins he lived most of the time with his mother in Lincoln. In some weeks he only spent one night at Father’s home and every other week he spent one night and the weekend at Father’s home. At Mother’s home, Student spent six days on the weeks when he only had the mid–week overnight with Father, and on the weeks when he spent the weekend with Father, he spent half of that week with Mother. W hile Student shared time with both of his Parents, Mother’s home was his primary residence. Equal time at the homes of both of Student’s parents did not occur until after Student’s placement at Perkins was initiated. Even then, under the terms of the temporary custody agreement, Mother retained sole physical custody of Student.

Up to the time of his parental unilateral removal to a private residential school, Student was enrolled at and attended Lincoln. Student’s last–agreed upon IEP calls for in–district placement at Lincoln. Lincoln has never drafted an IEP offering any type of out–of–district placement.

In light of the aforementioned facts, 603 CMR 28.10 (2)(a) is the applicable regulation. Said regulation states
(2) School District responsibility based on student residence . The school district where the student resides shall have both programmatic and financial responsibility under the following circumstances:

(a) When students live with their parent(s) or legal guardian.

1. When a student who requires an in–district placement to implement his or her IEP lives with both of his or her parents during the school year, irrespective of school vacation periods, and the parents live in two different Massachusetts school districts, the school district where the student is enrolled shall be responsible for fulfilling the requirements of 603 CMR 28.00. 603 CMR 28.10 (2)(a).

Since Student’s last agreed upon IEP, his Stay–put IEP, called for an in–district placement, that is, he was enrolled in Lincoln and since he lived with his Mother in said district, Lincoln is responsible for Student’s education. I note that Student’s placement in Perkins was unilateral and therefore, irrelevant in ascertaining the responsible district.

DESE relied on 603 CMR 28.10(4)(b) and 603 CMR 28.10(8)(c)(5) both of which are inapplicable here (Lincoln E-A; DESE’s brief). 603 CMR 28.10(4)2 deals with shared school district responsibility based on residency for students in living situations other than 603 CMR 28.10(2) or 603 CMR 28.10(3). As such, DESE’s reliance on 603 CMR 28.10(4) is misplaced because it is applicable only if 603 CMR 28.10(2) or 603 CMR 28.10(3) are inapplicable, where I have found 603 CMR 28.10(2) to be applicable. Moreover, 603 CMR 28.10(4)(b) is wholly irrelevant because Student was residing with Mother in Lincoln and he is not attending Perkins under an IEP drafted by Lincoln and accepted by Parents, or ordered by the BSEA.

Similarly, DESE’s reliance on 603 CMR 28.10(8)(c)53 is also misplaced as this section applies in situations where student is not living/residing with a custodial parent. Even when DESE applied the incorrect sections of the regulations, it reached the correct conclusion in that given the facts as they currently exist, Lincoln is solely financially and programmatically responsible for Student.

Lincoln’s reliance on 603 CMR 28.10 (2)(a)(2)4 is also without legal or factual merit as this section refers to a Student who requires an out–of–district placement, pursuant to an accepted IEP; that is, Lincoln’s IEP would have had to identify an out–of–district placement at the time the out–of–district placement occurred, and the student would have been required to have lived with his parents, even if in different homes, during the school year. Student’s IEP calls instead for an in–district placement in Lincoln (Lexington E-5). Since the facts of the case are inconsistent with this regulation, it is inapplicable.

Therefore, at present, under 603 CMR 28.10(2)(a)1, Lincoln is solely programmatically and fiscally responsible for Student’s education.

Lastly, since Lincoln has been found to bear sole educational responsibility for Student, its Motion to join Lexington filed on June 20, 2011, is DENIED.

ORDER:

1. Lincoln is fiscally and programmatically responsible for Student’s education.

2. Lincoln’s Motion to Join Lexington to BSEA # 11-8881is DENIED .

By the Hearing Officer,

____________________________________

Rosa I. Figueroa

Dated: August 29, 2011


1

The moving party, Lincoln, requested a decision based on the written submissions to which Lexington Public Schools assented. The Attorney for DESE also communicated her verbal assent in June 2011.


2

“ The school district where the parent(s) or legal guardian resides shall have financial responsibility and the school district where the student resides shall have programmatic responsibility when a student is in a living situation other than that described in 603 CMR 28.10(2) or (3) including but not limited to a relative’s home that is not funded by the Department of Children and Families, a foster home funded by the Department of Children and Families that is located outside of Massachusetts, a group home, a residence or crisis or respite facility funded or supervised by a state agency, and an approved residential special education school as a result of action by the Department of Children and Families….
(b) when such a student is served in an out–of–district program, the school district where the parent(s) or legal guardian resides shall pay the tuition costs for the student’s IEP program directly to the out–of–district school, and such other payments as may be required to other individuals or entities that provide services required by the student’s IEP.” 603 CMR 28.10(4)(b).

603 CMR 28.10(4) is applicable to situations other than those described in 603 CMR 28.10(2) (which involves students in out–of–district placements who live at home with their parents), and 603 CMR 28.10(3) involving: (a) students in a pediatric nursing home, (b) students whose IEPs call for an out–of–district placement, (c) students receiving services in an institutional facility, and (d) student’s placed by the Department of Children and Families. Specifically as to 603 CMR 28.10(4) (b), this subsection is inapplicable because in the case at bar Student’s IEP calls for an in–district placement and his residential placement is the result of a unilateral placement by Parent.


3

“ (c) The Department shall use the following criteria to assign a city, town or school district responsibility for a student in a living situation described in 603 CMR 28.10(3) or (4)

… 5. If the student’s parents live in two different school districts, such school districts shall be jointly responsible for fulfilling the requirements of 603 CMR 28.00 except if the student actually resided with either parent immediately prior to going into a living situation described in 603 CMR 28.10(3) or (4), or the parents are divorced or separated and one parent has sole physical custody, then the school district where the student resided with the parent or the school district of the parent who has sole physical custody shall be responsible and shall remain responsible in the event the student goes into the care or custody of a state agency.” 603 CMR 28.10(8)(5). (Emphasis supplied).


4

“When a student who requires an out–of–district placement to implement his or her IEP lives with both of his or her parents during the school year, irrespective of school vacation periods, and the parents live in two different Massachusetts school districts, the school districts where the parents reside shall be equally responsible for fulfilling the requirements of 603 CMR 28.00” 603 CMR 28.10 (2)(a)(2).


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