Littleton Public Schools – BSEA # 11-3309



<br /> Littleton Public Schools – BSEA # 11-3309<br />

COMMONWEALTH OF MASSACHUSETTS

Division of Administrative Law Appeals

Bureau of Special Education Appeals

In Re: Littleton Public Schools

BSEA # 11-3309

RULING RE MOTIONS FOR JOINDER OF MASSACHUSETTS DEPARTMENT OF CHILDREN AND FAMILIES AND LINCOLN-SUDBURY REGIONAL SCHOOL DISTRICT

Introduction

On December 20, 2010, Student’s Parents filed a hearing request with the Bureau of Special Education Appeals (BSEA) seeking an order requiring Littleton Public Schools (Littleton) to provide a residential placement for Student.

In its response to the hearing request, Littleton moved to join the Massachusetts Department of Children and Families (DCF) which has care and custody of Student. Littleton also moved to join the Lincoln-Sudbury Regional School District (Lincoln-Sudbury) because Parents reside in Lincoln, which is within the Lincoln-Sudbury School District. Lincoln-Sudbury has not opposed the motion that it be joined as a party, and on January 13, 2011, Lincoln-Sudbury filed with the BSEA its own motion to join DCF.

DCF opposes the motions seeking that it be joined as a party. On January 13, 2011, a telephonic hearing was held on the joinder motions.

Facts

Student is a seventeen-year-old young man who resides in a group home in Littleton. Student was placed in the group home by DCF, which has care and custody of Student through a Child in Need of Services petition.

Student’s special education eligibility is not in dispute. His diagnosed disabilities include Reactive Attachment Disorder, Specific Learning Disability in the area of written expression, Attention Deficit Hyperactivity Disorder, and Executive Functioning difficulties. Littleton is programmatically responsible for Student’s special education and related services. Littleton has placed Student within its high school where he is in the 11 th grade.

Littleton takes the position that Student is appropriately accessing the curriculum and is not in need of residential services for educational reasons. Parents disagree, arguing that Student requires a residential placement based on his educational needs.

Legal Framework

The issue before me is whether DCF should be joined as a necessary party. Pursuant to BSEA Hearing Rule 1J, joinder may be ordered upon a finding that (1) complete relief cannot be granted among the existing parties, or (2) the proposed party to be joined has an interest in this matter and is so situated that the dispute cannot be disposed of in its absence. Pursuant to Rule 1J, factors to be considered in determining whether to join a party are (1) the risk of prejudice to the present parties in the absence of the proposed party; (2) the range of alternatives for fashioning relief; (3) the inadequacy of a judgment entered in the proposed party’s absence; and (4) the existence of an alternative forum to resolve the issues.

I further note that statutory language regarding the jurisdiction of a BSEA Hearing Officer over state agencies (including DCF) provides, in part, as follows:

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 [now called the Department of Children and Families], the department of mental retardation [now called the Department of Developmental Services], 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

The phrase “in addition to” within this statutory language has been interpreted by BSEA Hearing Officers to mean that 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 not warranted, at least for the purpose of requiring the agency to provide services. This interpretation 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.

However, if additional services from a human services agency (over and above those services that are the responsibility of the school district) may be necessary to ensure that the student will be able to access or benefit from the school district’s special education program and services, then joinder of the state agency may be appropriate, so that the BSEA may then consider what, if any, additional services should be ordered.2

Discussion

For the reasons explained below, I find that it would be premature to join DCF.

Currently, DCF is providing residential services to Student in the form of a group home in Littleton. The parties have represented to the Hearing Officer that DCF will soon likely seek to return Student to live with his Parents in Lincoln apparently because DCF believes that Student may no longer need group home services. As a result, it is unknown whether DCF will continue to provide residential services and if so, for how long.

It is also noteworthy that Student turns 18 years old in July 2011. DCF services could continue past Student’s 18 th birthday if Parents obtain guardianship over their son and then apply (and are accepted) for voluntary services from DCF. Thus, it is unknown whether DCF will continue to be involved with Student at that time.

In addition, the parties have not addressed the question of whether the BSEA would have the authority to order DCF to provide residential services to Student if he is receiving only voluntary services from DCF. This issue may be considered by me, but only after the parties have made argument directly addressing it. Thus, it is unknown at this time whether, assuming DCF continues to provide services past Student’s 18 th birthday, the BSEA could order residential services after July 2011.

Joinder of DCF places a burden on the hearing process since the schedules of an additional party must be accommodated and additional time would be needed for direct testimony of DCF witnesses and cross-examination of other witnesses by the DCF attorney. Under these circumstances, for joinder to be justified, it is not sufficient that DCF may possibly be involved in the future and could possibly be ordered to provide needed services. It is also relevant to note that Parents, who presumably have the most at stake with respect to any delay in the resolution of this matter, have taken the position that complete relief can be obtained through a BSEA hearing with the responsible school districts.

At this juncture, the need for DCF services, DCF’s likely future involvement with Student, and the authority of the BSEA to order residential services if Student is receiving only voluntary services are all sufficiently unclear so that I am unable to determine that DCF is a necessary party. In other words, it has not been demonstrated that joinder is warranted at this time.

Accordingly, joinder of DCF will be denied without prejudice.

A motion to join DCF may be renewed in the event that DCF’s future involvement and responsibility become clearer, in the event that the BSEA determines that residential services are not the responsibility of a school district, or because of other change in circumstances relevant to the need for DCF to be ordered to provide services so that Student would be able to access or benefit from his special education services.

Order

Littleton’s motion to join the Lincoln-Sudbury Regional School District is unopposed and is therefore ALLOWED .

Littleton’s and Lincoln-Sudbury’s motions to join the Massachusetts Department of Children and Families are DENIED WITHOUT PREJUDICE .

By the Hearing Officer,

_________________

William Crane

Date: January 24, 2011


1

MGL c. 71B, s. 3. See also 603 CMR 28.08(3) (regulatory language similar to above-quoted statutory language).


2

See, e.g., In Re: Fall River Public Schools , BSEA # 09-6962, 15 MSER 152 (SEA MA 2009); In Re: Fall River Public Schools , BSEA # 07-2412, 13 MSER 40 (SEA MA 2007); In Re: Gloucester Public Schools , BSEA # 04-3543, 10 MSER 389 (SEA MA 2004); In Re: Fall River Public Schools , BSEA # 02-4839, 8 MSER 326 (SEA MA 2002); In Re: Ipswich Public Schools , BSEA # 02-4324, 8 MSER 185 (SEA MA 2002) and other rulings cited therein.


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