Lincoln Sudbury Regional School District, Dept. of Elementary and Secondary Education and Lexington Public Schools – BSEA# 12-3149



<br /> Lincoln-Sudbury Regional School District, Dept. of Elementary and Secondary Education and Lexington Public Schools – BSEA# 12-3149<br />

COMMONWEALTH OF MASSACHUSETTS

DIVISION OF ADMINISTRATIVE LAW APPEALS

SPECIAL EDUCATION APPEALS

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

BSEA No. 12-3149

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 the regulations promulgated under those statutes.

On November 7, 2011, Lincoln–Sudbury Regional School District (Lincoln –Sudbury) filed an appeal of an Assignment of School District Responsibility (Assignment) issued by the Department of Elementary and Secondary Education (DESE). Lincoln–Sudbury’s Appeal followed its implementation of a previous BSEA Decision dated August 29, 2011, involving most of the same Parties. Once again, Lincoln–Sudbury challenges DESE’s finding that Lincoln–Sudbury bears sole financial responsibility for Student’s special education program.

Following a short request for postponement on submission of documents, Lexington Public Schools (Lexington) submitted an Opposition to Lincoln–Sudbury’s Request for Hearing and accompanying documents, and DESE submitted its Position Statement, both on December 5, 2011. As such the record closed on that date.

The official record of this hearing consists of the submissions listed above, together with Lincoln–Sudbury’s Exhibits (Lin) Lin-1 to Lin-5 and Lexington’s (Lex) Lex-1 to Lex-7. The DESE submitted only a written argument/ brief. .

ISSUE:

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

POSITION OF THE PARTIES :

Lincoln–Sudbury’s Position :

Lincoln challenges DESE’s assignment of programmatic and financial responsibility issued in October 31, 2011, finding Lincoln–Sudbury solely responsible for Student’s education. Relying on a BSEA Decision issued on August 29, 2011, Lincoln–Sudbury argued that DESE should have applied 603 CMR 28.10(2)(a)(2), thereby finding both Lincoln–Sudbury and Lexington jointly responsible for Student’s out–of–district placement.

Lincoln–Sudbury notes that since the BSEA decision was issued, Lincoln–Sudbury convened a Team meeting and developed an IEP calling for Student’s out–of–district residential placement. Lincoln–Sudbury is funding this placement but argues that since Student lives with both his of his parents, the correct regulation applicable in this case is 603 CMR 28.10(2)(a)(2), under which both Lincoln–Sudbury and Lexington, the districts where Parents live, should share financial responsibility for Student’s education.

DESE’s Position :

Relying on 603 CMR 28.10(3)(b) and the exception provided in 603 CMR 28.10(8)(c)(5) for students who actually resided with either parent immediately prior to entering the residential school, DESE asserts that Lincoln–Sudbury bears sole fiscal responsibility for Student. According to DESE, Parents are divorced and Mother has physical custody of Student. DESE states that during the school year preceding Student’s unilateral placement at Dr. Franklin Perkins School (Perkins) by Mother, Student lived only with his mother. DESE further states that Lincoln–Sudbury drafted an IEP in July 2011 calling for Student’s placement at Perkins after Mother had unilaterally placed Student in late June 2011.

DESE seeks that the BSEA uphold its determination of October 31, 2011.

Lexington’s Position :

Lexington argued that DESE’s application of 603 CMR 28.10 (8)(c)(5) was correct and consistent with George H. & Irene L.Walker v. Town of Franklin , 416 Mass. 291, 296 (1993), because Student lived with Mother prior to entering Perkins and Mother has sole physical custody of Student, as well as educational decision–making authority, under the Stipulation for Temporary Orders in her divorce decree. Lexington asserts that Lincoln–Sudbury failed to meet its “burden of demonstrating the invalidity of the agency determination”1 and as such DESE’s determination should be upheld.

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 Public Schools, from 2006 through the end of the 2009-2010 school year.

3. Lincoln Public Schools’ responsibility for Student concluded at the end of the 2010-2011 school year. Thereafter, Student became the responsibility of the Lincoln–Sudbury Regional School District, referred to in this Decision as Lincoln–Sudbury.

4. Student’s Lincoln Public Schools Team convened in the summer 2010 and drafted an IEP, covering the period June 2010 through June 2011, and calling for a partial inclusion program in Lincoln Public Schools. Parent rejected this IEP on July 28, 2010 (BSEA # 11-9766 Lexington E-5).

5. During the past five years, Student’s mother has lived in Lincoln, Massachusetts, and his father in Lexington, Massachusetts (BSEA # 11-9766 Lexington E-1 & E-4).

6. 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 Middlesex County Probate and Family Court in 2010, in connection with Parents’ divorce (Lex-7; BSEA # 11-9766 Lexington E-9).

7. 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 (Lex-7; BSEA # 11-9766 Lexington E-4 & E-7).

8. 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 (Lex-7; BSEA # 11-9766 Lexington E-7A).

9. 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 (BSEA # 11-9766 Lexington E-7A).

10. 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).

11. On June 27, 2011, DESE issued an Assignment of School District Responsibility finding that Lincoln–Sudbury 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” (BSEA # 11-9766 Lexington E-2). This determination was based on DESE’s belief that Parents were divorced and mother had physical custody of Student (Lex-1).

12. Lincoln–Sudbury 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 (BSEA #11- 9766 Lexington E-3).

13. The issue of Local Educational Agency (LEA) responsibility was first brought to the BSEA during the summer of 20112 . At the time, Lincoln Public Schools and Lincoln–Sudbury disputed the June 27, 2011 Assignment of School District Responsibility issued by DESE (Lin-2). A Decision in Lincoln Public Schools’ and Lincoln–Sudbury Regional School District’s Appeal, BSEA # 11-9766, was issued on August 29, 2011. The Decision placed sole responsibility for Student’s education on Lincoln–Sudbury pursuant to 603 CMR 28.10(2)(a) which defines LEA responsibility based on a Student’s placement in an in-district program3 (Lin-3; Lex-2).

14. On September 16, 2011, Lincoln–Sudbury convened a Team meeting and invited Lexington Public Schools to participate, since Student’s Father is a resident of Lexington (Lin-5; Lex-6). Although Lexington disclaimed any responsibility for Student, its representative attended the meeting (Lin-4; Lin-5; Lex-6).

15. The Lincoln–Sudbury Team developed an IEP calling for Student’s residential placement at the Dr. Franklin Perkins School (Perkins) in Lancaster, Massachusetts. Mother accepted this IEP in full on September 22, 2011, and Student continues to attend Perkins as a publicly funded residential student (Lin-4).

16. On October 11, 2011, Lincoln-Sudbury filed a Request for Clarification of School District Assignment with the DESE (Lin-4).

17. DESE issued an Assignment of School District Responsibility on October 31, 2011, once again finding Lincoln4 solely responsible for Student’s education. DESE relied on 603 CMR 28.10(3)(b) and 603 CMR 28.10(8)(c)(5) in reaching its determination (Lin-1; Lex-4). Specifically, DESE relied on the portion of 603 CMR 28.10(8)(c)(5) which states (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… 28.10(3) or (4). 603 CMR 28.10(8)(c)(5) (emphasis added) (Lin-1; Lex-3)

CONCLUSIONS OF LAW:

As stated in BSEA # 11-9766

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-Sudbury 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.

In Re: Lincoln Sudbury Public Schools, Lincoln-Sudbury Regional School District, Department of Elementary and Secondary Education & Lexington Public Schools, BSEA # 11-9766 (Figueroa, August 29, 2011)

With this guidance, I turn to the facts in the case at bar.

The relevant facts in this case are first, that throughout all relevant times, under the terms of the temporary custody agreement, Mother retained sole physical custody of Student pursuant to the Stipulation for Temporary Orders , G.L. Ch. 208 §19 (Lex-7).

In addition, immediately prior to entering Perkins, Student lived most of the time in Lincoln with his mother. He lived with Father in Lexington on Wednesdays and alternating weekends, so every other week he only spent one night at Father’s home (Lex-4). Student spent six days a week at Mother’s home in Lincoln during the weeks when he only had the mid–week overnight with Father, and on the weeks when he spent the weekend with Father, he lived four days with Mother (Lex-7). While Student shared time with both of his Parents, Mother’s home was his primary residence (Lex-7). It was not until after Student initiated his placement at Perkins that he began spending equal time at the homes of both of his parents.
(At the time that Student initiated his placement at Perkins, his last–agreed upon IEP called for in–district placement at Lincoln. On September 2011, Lincoln–Sudbury drafted an IEP calling for Student’s residential placement at Perkins for the 2011-2012 school year. Student currently attends Perkins under this IEP.)

DESE’s determination relies on 603 CMR 28.10 (3)(b) and 603 CMR 28.10 (8)(c)(5), which state:
(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 requires an out of district placement lives and receives special education services at a special education residential school.

603 CMR 28.10 (8) addressing Department Assignment of School District Responsibility provides
(a) The Department may assign or a school district or agency may request the Department’s assistance in assigning a city, town, or school district to be responsible for students in living situations described in 603 CMR 28.10 (3) or (4)

1. who are in the care or custody of a state agency and have no parent or legal guardian residing in Massachusetts; or

2. when the residence or residential history of the student’s parent(s) or legal guardian is in dispute; or

3. when the student has a legal guardian who has been appointed on a limited basis; or when a student has not yet been determined to be eligible and/ or is not receiving services, or

4. when a student is in the care or custody of a state agency and is hospitalized and the agency gives notice to the responsible school district that the student will not return to the residence held prior to hospitalization…
(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)(c)5.

DESE reasoned that since Parents are divorced, Mother had sole physical custody, and Student lived with her immediately preceding residential placement at Perkins, Mother’s residence, that is Lincoln–Sudbury, bore sole responsibility for Student. DESE’s determination is based on the fact that (a) Student resided with Mother prior to going into Perkins and (b) that Mother has sole physical custody of Student who is a minor.

Additionally, DESE asserts that its finding is consistent with Walker , supra, in which the Court found that the domicile or residence of a minor child is generally the same as the parent with physical custody. As such, the Court in Walker held that DESE could not hold the two school districts where parents resided jointly responsible for the student’s education if one parent had sole physical custody.

Lexington’s brief argued that since both exceptions to 603 CMR 28.10 (8)(c)5 apply in the case at bar, DESE’s determination was correct. Moreover, it argued that such determination comports with the Massachusetts Supreme Judicial Court’s holding in Walker , since Mother has sole physical custody of Student, and she continues to reside in Lincoln.

Lincoln–Sudbury disputes this finding and instead relies on dicta from the previous BSEA Decision which found 603 CMR 28.10(2)(a) to be the applicable regulation to the facts therein. Lincoln–Sudbury now argues that since Student now lives with both his Parents equally, and since he is in a residential out–of–district placement under an accepted IEP, subsection 2 of 603 CMR 28.10(2)(a) is controlling. 603 CMR 28.10(2)(a), and specifically subsection 2 provides
(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:

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

2. 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.

Lincoln–Sudbury is correct that at the time it requested the LEA determination in September 2011, Student was living with both his parents and spending equal time with them. Lincoln–Sudbury’s argument however, fails in that at the time of the LEA determination, Mother had sole physical custody of Student who had an IEP calling for an out–of–district placement and was living at said residential placement, consistent with 603 CMR 28.10(3)(b) and 603 CMR 28.10(8)(c)(5). As such, Lincoln–Sudbury is solely responsible for Student’s educational placement. DESE’s determination of School District Responsibility is upheld.

ORDER :

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

By the Hearing Officer,

____________________________________

Rosa I. Figueroa

Dated: December 16, 2011


1

Coggin v. Mass. Parole Board , 42 Mass. App.Ct. 584 (1997) in In Re: Marlborough Public Schools , 15 MSER 381 (209).


2

Lincoln’s Request for Hearing pursuant to 603 CMR 28.10(9) was filed on June 29, 2011 (Lin-3).


3

The Decision further stated:

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 the regulations governing LEA responsibility when an in-district IEP is in effect. (Emphasis added).


4

The original determination issued mistakenly named Lincoln Public Schools as opposed to Lincoln-Sudbury Regional School District, but this mistake was corrected by DESE (Lex-3; Lex-4).


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