Lowell Public Schools – BSEA #03-1471



<br /> Lowell Public Schools – BSEA #03-1471<br />

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

IN RE: Lowell Public Schools

BSEA# 03-1471

DECISION ON MOTIONS

This decision is rendered pursuant to M.G.L. Chapters 15, 30A and 71B; 20 U.S.C. §1400 et seq .; 29 U.S.C. §794; and the regulations promulgated under each of these statutes.

PROCEDURAL HISTORY

On September 16, 2002 the Lowell Public Schools (Lowell) requested a hearing before the Bureau of Special Education Appeals (BSEA) against the Clinton Public Schools (Clinton), the Massachusetts Department of Education (DOE) and the Massachusetts Department of Social Services (DSS). A BSEA hearing was initially scheduled for October 7, 2002, and re-scheduled for October 15, 2002 to assure proper notice to all potential parties. Appearances were entered and postponements were requested. On September 27, 2002 Lowell filed a Motion To Join DSS As A Respondent. On October 8, 2002 DSS filed its Opposition To Join DSS As A Respondent. A pre-hearing conference call took place on October 15, 2002 at which time a pre-hearing conference/motions session was scheduled for December 2, 2002 and parties/potential parties were encouraged to exchange information with each other to clarify the issues in dispute. On November 6, 2002 Clinton filed a Motion For Summary Judgement As To Clinton, with accompanying exhibits. On November 27, 2002 Lowell filed its Memorandum In Opposition To Clinton’s Motion For Summary Judgement. The pre-hearing conference/motions session took place on December 2, 2002. Settlement proved elusive. However, the parties/potential parties agreed to waive oral testimony and oral arguments and to rely upon all of the written material submitted plus additional written material to be submitted. On December 3, 2002 Student’s Educational Surrogate Parent (ESP) filed a letter with the BSEA. On December 20, 2002 Clinton filed a Supplemental Memorandum Of Law and accompanying affidavits. Also on December 20, 2002 DSS filed an affidavit with the BSEA. Finally on December 20, 2002, DOE filed a Memorandum of Law with an accompanying exhibit. On December 24, 2002 Lowell filed a Final Memorandum regarding its position against Clinton, DOE and DSS with accompanying exhibits and affidavits.

Therefore, by agreement of the parties/potential parties, this DECISION ON MOTION S is rendered based upon all of the written pleadings, motions, and oppositions thereto; all of the written exhibits, documentation, affidavits and correspondence submitted by the parties; and all of the written arguments and memoranda submitted by the parties.

HISTORY/STATEMENT OF FACTS OF THE CASE

Student is a 16 year old special education student who is in the custody of DSS. On March 30, 2001 Student was placed in a DSS foster home in Clinton. Student’s mother resides in Lowell. Pursuant to Student’s Individual Education Plan (IEP) for the period of September 2001 through June 2002, written by Clinton, Student was educated in Clinton High School in a substantially separate special education placement. In late 2001 Student experienced disciplinary and attendance issues. In late January 2002 the team proposed and Student’s ESP accepted an extended evaluation at Dr. Franklin Perkins School in Lancaster, MA (Perkins) which is a private day school placement for students with emotional and behavioral difficulties. Student ran away from his foster home after his first day at Perkins and his slot was lost. Student was later found by DSS and returned to his foster home. When a new slot at Perkins opened up the team again proposed and Student’s ESP accepted an extended evaluation at Perkins which was scheduled to run from April 24, 2002 – June 26, 2002. (See Clinton Exhibits 1-5.)

On May 23, 2002 while at Perkins, Student was hospitalized at Pembroke Hospital (C-1). Prior to Student’s hospitalization, Clinton had scheduled an emergency team meeting for May 28, 2002 at Perkins School at the request of Perkins due to Perkins’ concerns. The notice for this meeting was dated May 24, 2002 (Affidavit McGrail; C-6). Lowell’s Director of Special Education, Dr. Adie, was invited to this emergency team meeting at the suggestion of Student’s ESP since Clinton was aware that Student’s hospitalization and any changes in his foster placement would shift financial and/or educational responsibilities to Lowell (Affidavit, McGrail). Dr. Adie received this notice on May 24, 2002 and requested, via fax, that “this meeting be delayed to allow representation from Lowell, if deemed necessary” (C-7) which was received by Clinton at 4:34 P.M. (Affidavit, McGrail). Due to the late hour and the long holiday weekend, Ms. McGrail, Clinton’s special education director, did not receive Dr. Adie’s request until May 28, 2002, the date for the scheduled team meeting. By that time it was too late to postpone the team meeting, scheduled for noon that day, because of the number of people invited, including Perkins staff (Affidavit, McGrail). At the May 28, 2002 team meeting Perkins terminated Student’s extended evaluation at Perkins; Clinton wrote an IEP for Student proposing an unspecified day school placement “Specific Program to be determined”; and DSS agreed to consider a residential/cost share placement. (See L-2; C-8.) According to the affidavit submitted by Ms. Boyson, Student’s DSS social worker, at ¶ 5:

As of the date of the May 28 Team Meeting, DSS had made no decision regarding where [Student] would live when he was discharged from the hospital. We had not decided whether [Student] would return to his foster home in Clinton, a foster home in another town, or any other setting.

This IEP (L-2; C-8) was accepted by Student’s ESP on June 3, 2002. On June 3, 2002 Ms. McGrail sent to Lowell/Dr. Adie a copy of the IEP that resulted from the May 28, 2002 team meeting along with a cover letter in which Ms. McGrail noted (S-10):

Because [Student’s] placement is still considered the foster home in Clinton, Clinton is the programmatically responsible system and Lowell is the fiscally responsible system. I am unsure how much longer [Student] will be listed as being in the Clinton foster home so I am unsure as to how long Clinton Public Schools will be the school system with programmatic responsibility.

[Student] is still hospitalized at Pembroke Hospital. We have scheduled a meeting for Tuesday June 4, 2002 at noon at the Hospital to discuss [Student’s] current status.

As you can see the Team has recommended a Day Program for [Student] with a DSS cost share for a residential placement. It is obvious that [Student] is not safe in his foster home nor in the community. (See also affidavit, McGrail.)

Lowell asserts that it never received Clinton’s/Ms. McGrail’s June 3, 2003 cover letter or

Student’s IEP signed on June 3, 2002. (See affidavits, Adie; Bezdeny.) Lowell asserts that it only received the June 3, 2002 IEP on September 10, 2002 when the DSS social worker faxed Lowell a copy of the IEP (L-2; affidavit Bezdeny).

Ms. Boyston, Student’s DSS social worker, notes in her affidavit:

8) After the (May 28, 2002 team) meeting and after obtaining needed clinical information from Pembroke Hospital concerning [Student’s] needs, I submitted the information along with the known special education needs and IEP, for consideration of a group care placement through our agency’s process which requires approval by the Area Office Director. The request was approved on July 25, 2002.

9) After a copy of the IEP was provided to me, and group care placement was approved, DSS sought clarification of the responsible LEA (Local Education Authority) by writing to the Department of Education.

On July 30, 2002 DSS filed with DOE DSS’ Request for Clarification of School District

Assignment pursuant to 603 CMR 28.03(4). (See DOE-1.) On August 22, 2002 DOE assigned to Lowell both programmatic and fiscal responsibility to Lowell based upon: 1) Parent’s residence in Lowell; and 2) Student was then and had been in a hospital setting since May 23, 2002. (See L-1; C-9; DOE-1.)

On September 10, 2002 the ESP was notified by DSS that Student had been accepted at Harbor School and that Lowell had agreed to a cost share with DSS for that placement (Affidavit, Grennon). Lowell is funding the educational/day component of the placement and DSS is funding the residential component. (See also Lowell and DSS Memoranda.) This is Student’s current placement (Affidavit, Grennon).

ISSUES IN DISPUTE

1. Should DOE have applied the move-in-law, M.G.L. c. 71B s. 5, to this situation in its LEA assignment?

2. What financial responsibility, if any, does Clinton have in this situation?

3. What additional financial responsibility, if any, does DSS have in this situation?

STATEMENT OF POSITIONS

Lowell v. DOE

Lowell accepts DOE’s Assignment of Responsibility given Parent’s residence in Lowell. Lowell does not dispute that upon the hospitalization of Student it became the LEA programmatically and fiscally responsible for Student. However, Lowell contends that the move-in law should apply to this situation because the effect upon Lowell is the same as if Student had physically moved from Clinton into Lowell and Clinton should be responsible for the balance of the 2001-2002 fiscal year (May to July 2002). Further, because the “move-in” occurred between April 1 and June 30, 2002 (hospitalization was May 23, 2002) Lowell argues that Clinton is responsible for the subsequent fiscal year (2002-2003) as well. Therefore, in effect, Lowell is requesting that DOE’s assignment of fiscal responsibility to Lowell be overturned through the end of the 2002-2003 school year.

Lowell v. Clinton

Lowell contends that since it became the LEA of programmatic and fiscal responsibility upon Student’s hospitalization on May 23, 2002, the May 28, 2002 team meeting was illegal, as was Clinton’s promulgation of a new IEP for Student signed by Clinton and Student’s ESP. Lowell argues that Clinton’s actions harmed Lowell and that, as a remedy, Clinton be found fiscally responsible (with DSS) for the balance of the 2001-2002 fiscal year as well as for the 2002-2003 fiscal year.

Lowell v. DSS

Lowell contends that DSS violated DSS regulation 100 CMR 7.403(2):

Whenever educational responsibility for a child in the Department’s care and custody shifts from one LEA to another because of a shift in the child’s custody or placement, the Department social worker shall notify both the old LEA and the new LEA in writing of the change as soon as the Department becomes aware that a shift in educational responsibility is likely or has occurred.

Lowell contends that DSS’ actions in not following the above regulation harmed Lowell and that, as a remedy, DSS be found fiscally responsible (with Clinton) for the balance of the 2001-2002 fiscal year as well as for the 2002-2003 fiscal year.

DOE’s Position

DOE contends that its determination that Lowell is both programmatically and financially responsible for Student’s special education program is consistent with the applicable law and regulations. DOE also contends that the move-in law does not apply to this situation since prior to Student’s hospitalization Student was not in a day or residential placement at an approved private school or in a pediatric nursing home.

DSS’ Position

DSS opposes Lowell’s Motion To Join DSS AS A Respondent for several reasons. First, given that Lowell requested this hearing to challenge DOE’s LEA assignment/interpretation of the move-in law, DSS is not a necessary party to this action and the case can be disposed of without DSS’ involvement pursuant to BSEA Hearing Rule 1F. Second, DSS contends that it did not fail to implement 100 CMR 7.403(2) and, in any event, Lowell has not been harmed by any DSS action or inaction since Lowell had actual notice of the May 28, 2002 team meeting. Third, DSS contends that any inaction by DSS with regard to 100 CMR 7.403(2) would not negate the LEA assignment process. Finally, DSS argues that in an LEA assignment case that the BSEA is without jurisdiction to order the relief which Lowell seeks against DSS.

Clinton’s Position

Clinton moves for Summary Judgment asserting that there is no genuine issue as to any material facts in this case and that Clinton is entitled to judgment as a matter of law. Clinton asserts that DOE’s determination of fiscal responsibility was made in accordance with relevant laws and regulations. Clinton further asserts that Lowell has not suffered any legally cognizable harm for which it could be remedied by Clinton.

RULINGS

Based upon all of the written materials submitted and a review of the applicable law, I conclude that: 1) DOE’s position regarding the move-in law is CORRECT ; 2) Lowell’s Motion To Join DSS is DENIED ; and 3) Clinton’s Motion For Summary Judgment is GRANTED . Therefore, BSEA #03-1471 is hereby DISMISSED .

My analysis follows.

DOE – The Move-In Law

Lowell does not dispute that, pursuant to 603 CMR 28.04(4)(b), Lowell is both fiscally and programmatically responsible for Student. However, Lowell asserts that, pursuant to the move-in law, Clinton should remain fiscally responsible for Student until the end of the 2003 fiscal year.

M.G.L. c. 71B s.5 provides, in pertinent part (the move-in law) as follows: if a child with disability for whom a school committee currently provides or arranges for the provision of special education in an approved private day or residential school placement, including placement in a pediatric nursing home, pursuant to the provisions of section three, or his parent or guardian, moves to a different school district on or after July first of any fiscal year, such school committee of the former community of residence shall pay the approved budgeted costs, including necessary transportation costs, of such day or residential placement, including placement in a pediatric nursing home, of such child for the balance of such fiscal year; provided, however that if such move occurs between April 1 and June 30, such school committee of the former community of residence shall pay such costs for the balance of the fiscal year in which the move occurred as well as for the subsequent fiscal year.

Based upon the above, if Clinton provided or arranged for the provision of a day or residential school program for Student and Student or his parent/guardian moved on or after July 1, Clinton would be responsible for the approved budgeted costs of the placement for the fiscal year in which Student moved. Further, if such move occurred between April 1 and June 30, Clinton would be responsible for the fiscal year in which Student moved, as well as the subsequent fiscal year.

However, under the clear language of the statute, the move-in law only applies to students who were in a pediatric nursing home or an approved private day school placement or residential school placement prior to the move; and who continue in such a placement after the move. Based upon the undisputed facts of this case, the move-in law does not apply to Student’s situation. Prior to Student’s hospitalization (move) Student was not in a pediatric nursing home, approved private day school placement or approved residential placement. Prior to being hospitalized, Student was in an extended evaluation at Perkins. 603 CMR 28.05(b)(5) specifically provides:

The extended evaluation shall not be considered a placement .

Because the extended evaluation was not a placement, Student’s placement prior to being hospitalized was a Clinton in-district placement at Clinton High School. (See HISTORY/STATEMENT OF THE CASE , above.) I find that the facts are clear that Student was not in a pediatric nursing home, approved private day school placement or approved residential placement prior to his hospitalization. Therefore, I conclude that the move-in law is not applicable based upon the facts of this case. Accordingly, I conclude that DOE’s LEA assignment of Lowell as the LEA both fiscally and programmatically responsible for Student, pursuant to 603 CMR 28.03(4), which has not been contested by Lowell, is CORRECT .

DSS

I conclude that DSS did not fail to implement 100 CMR 7.403(2) which is cited under STATEMENT OF POSITIONS – Lowell v. DSS , above. As of the May 23, 2002 hospitalization of Student and as of the May 28, 2002 team meeting DSS, which had custody of Student, had made no decision regarding where Student would live when he was discharged from Pembroke Hospital. (See Boyson Affidavit.) Student might have returned to his foster home in Clinton in which case Clinton would again have been the responsible LEA. Student may have been moved to another foster home or to a specialized foster home in another community in which case that community would have become the responsible LEA. A cost-shared residential situation was also a possibility. After obtaining the necessary clinical information and recommendations for treatment to address

Student’s needs from Pembroke Hospital, Ms. Boyson submitted such information to DSS for internal review and consideration of a group care placement which was approved by DSS on July 25, 2002. DSS then sought clarification of LEA responsibility from DOE (Boyson Affidavit).

Given the fluidity of Student’s situation, I do not find DSS’ actions or lack of action regarding Lowell to be inappropriate. At the time of Student’s hospitalization and team meeting, DSS had not yet determined the type of residential services it would be providing to Student post hospitalization. Therefore, at the time Student was hospitalized, DSS could not have accurately determined whether it was likely that educational responsibility would shift to or stay with Lowell. Once Student’s situation stabilized and clarified, DSS took the necessary actions to residentially place him and to find out who the actual LEA of responsibility was.1

I also find no basis for Lowell’s proposition that DSS’ actions or inaction regarding Lowell caused Lowell harm. Lowell acknowledges that it had actual notice of the May 28, 2002 team meeting from Clinton. Lowell’s Special Education Director, Dr. Adie, responded to that notice requesting a postponement “to allow representation from Lowell, if deemed necessary”. (See HISTORY/STATEMENT OF FACTS OF THE CASE , above.) Such actual notice to Lowell renders failure by DSS, if any, to comply with 100 CMR 7.403(2) to fall within the realm of harmless error.

CLINTON

Lowell does not state nor provide any evidence of harm or prejudice it suffered as a result of the May 28, 2002 team meeting, nor any basis upon which relief from any alleged harm could be granted against Clinton, except by the application of the move-in law. However, the move-in law is not applicable based upon the law and the undisputed facts of this case. (See RULING regarding DOE , above.)

603 CMR 28.03(4)(b) provides, in pertinent part:

The parent’s school district shall have both programmatic and financial responsibility when eligible students are in hospitals…..

Clinton admits that, at the time of the team meeting/drafting of the IEP, it believed that it was programmatically responsible for Student’s special education. Clinton admits that it was mistaken because, pursuant to the above-cited regulation, both programmatic and fiscal responsibility shifted to the parent’s school district (Lowell) at the time of Student’s hospitalization. However, 603 CMR 28.03(4)(h) provides, in pertinent part:

Upon notification of responsibility (by DOE) for provision of special education to a child under this paragraph, the school district(s) shall immediately begin to provide such services in accordance with the requirements of these regulations. Until such notification, the school district that had been responsible for providing special education to such child under these regulations shall continue to be responsible.

Lowell submits an October 4, 2002 letter from DOE’s Program Quality Assurance Services (PQA) to another Lowell attorney in response to an apparent inquiry on September 24, 2002. The body of the letter reads, in its entirety, as follows (L-C):

We are writing in response to your letter to the Department dated September 24, 2002 pertaining to clarification as to when the Department’s LEA assignments commence.

In accordance with applicable Board of Education special education regulations under 603 CMR 28.00, it has been the Department’s consistent position that LEA assignments commence when the regulations say they occur-that is, the event itself and not the notification from the Department of Education. The only exceptions are when the facts themselves lend confusion to the date of the “event.” To hold that an assignment occurs only upon Department notification may prompt districts to delay their timely assumption of responsibilities under the Board’s regulations. Districts are responsible immediately upon the date that the facts are undisputed as to when a student moved or was placed.

We hope that this clarification is of assistance to you.

Lowell argues that 603 CMR 28.03(4)(b) and 28.03(4)(h) are in conflict; that the PQA letter supports Lowell’s contention that the event (hospitalization) is the crucial factor to LEA responsibility; and, therefore, the Clinton team meeting and IEP were illegal.

I do not find a conflict between these two regulations, nor in the PQA letter to Lowell. Pursuant to 603 CMR 28.03(4)(b) Lowell became the LEA of both programmatic and fiscal responsibility based upon the event of Student’s hospitalization- not DOE’s notification of LEA assignment. Pursuant to 603 CMR 28.03(4)(h) until DOE determination/notification of LEA assignment, the prior LEA (Clinton) continued to be responsible for providing special education services. I conclude that 603 CMR 28.03(4)(h) is designed to be a safety net to assure that students continue to receive and are not deprived of their special education services in those situations where there is confusion as to which LEA is the LEA of programmatic and/or fiscal responsibility; where there is a dispute between LEA’s as to which LEA is the LEA of programmatic and/or fiscal responsibility; or where the LEA which is programmatically and/or fiscally responsible under the regulations does not act to fulfill its legal responsibilities.

I do find an inherent conflict with Lowell’s legal position in this appeal and its actions or lack thereof. Lowell argues that Clinton acted illegally and somehow usurped Lowell’s authority. However, Lowell had notice of Student’s hospitalization and team meeting on May 24, 2002 and responded by requesting a postponement to allow representation for Lowell if deemed necessary. Lowell was sent a copy of the IEP with an informational cover letter by Clinton on June 3, 2003. Yet Lowell took no action whatsoever until DOE specifically assigned Lowell programmatic and
fiscal responsibility on August 22, 2002, some 3 months later. (See HISTORY/STATEMENT OF FACTS OF THE CASE , above.) I find that the instant situation is exactly the type of situation why 603 CMR 28.03(4)(h) was promulgated and is, unfortunately, so necessary.

I acknowledge Lowell’s position that it never received Clinton’s/Ms. McGrail’s June 3, 2002 cover letter with a copy of the IEP sent to Lowell/Dr. Adie.2 Nevertheless, Lowell was on notice as of May 24, 2002 that it had or would have fiscal and/or programmatic responsibility for Student. If, as Lowell asserts, it heard nothing further from Clinton after the May 24, 2002 team meeting notice and Lowell’s request for postponement, I find it utterly incomprehensible that there was absolutely no follow up by Lowell. Lowell knew it had/would have some type of responsibility for Student. Lowell knew there was to be a team meeting on May 28, 2002. Lowell requested a postponement to allow representation by Lowell “if deemed necessary.” Yet Lowell proceeded to do absolutely nothing further. Did the team meeting take place? If so, what was the result? If Lowell’s request for postponement was granted, what was the new date for the rescheduled team meeting? Was Student still in the hospital? If not, where did Student go? Where was Student now living? Lowell did absolutely nothing to ascertain what programmatic or fiscal responsibility it had in this situation. I note ¶ 9 of Ms. McGrail’s affidavit received by the BSEA on December 20, 2002:

Except for the May 24, 2004 fax, Lowell has not contacted my office in regard to [Student] or the alleged “illegal” May 28, 2002 TEAM Meeting. To date Lowell Public Schools has not requested any records from my office regarding [Student].

Pursuant to 603 CMR 28.03(4)(h) Clinton stepped up to the plate, assumed responsibility for continuity of Student’s special education services, and filled the void created by Lowell while Lowell did nothing and attempted to ascertain nothing regarding Student, until being effectively ordered to do so by DOE on August 22, 2003.

Finally, even if it were determined that Clinton should not have developed the May 2003 IEP, I find that Lowell has suffered no harm. The Clinton IEP specified no particular placement (“Specific Program to be determined”). Student was never placed by Clinton into any specific placement or program as a result of the May 28, 2000 team meeting or IEP. Student remained hospitalized until September/October 2002 when Lowell – the LEA of programmatic and fiscal responsibility – and DSS entered into a cost sharing agreement placing Student residentially at Harbor School. (See HISTORY/STATEMENT OF FACTS OF THE CASE , above; Grennon affidavit; Lowell Memorandum; DSS Memorandum.) If Lowell believes another program or placement is more appropriate for Student, as the responsible LEA it could have requested to perform evaluations of Student and/or to convene a team meeting to consider other options and to promulgate an IEP for a different program and/or placement. Lowell has not done so. I note the affidavit of Ms. Grennon, Student’s ESP, that Lowell has never contacted her with regard to

Student; that Lowell has not convened a team meeting nor provided a current IEP for Student; and that Lowell has not provided her with a placement page nor requested her signature on a placement page that identifies Student’s current placement.

ORDER

1. DOE’s position regarding the move-in law is CORRECT .

2. Lowell’s Motion To Join DSS AS A Respondent is DENIED .

3. Clinton’s Motion For Summary Judgment is GRANTED .

4. BSEA #03-1471 is DISMISSED.3

By the Hearing Officer,

______________________

Dated: April 24, 2003

Raymond Oliver


1

Quite frankly, Lowell’s “invisibility” from the time they were notified of the May 28, 2002 team meeting and requested a postponement until DOE assigned Lowell fiscal and programmatic responsibility on August 22, 2002 is rather astonishing, given that Lowell was aware as of May 24, 2002 that it had or would have at least some responsibility in this case.


2

I accept as true and accurate the affidavits of Dr. Adie and Ms. Bezdeny that neither of them received Ms. Mc.Grail’s June 3, 2003 cover letter with a copy of the IEP. However, Clinton provided notice to Lowell of the team meeting. Clinton developed an IEP. Clinton wrote a detailed cover letter to Lowell/Dr. Adie dated June 3, 2003 enclosing the IEP. I am unable to believe that Clinton would have done all of these things and then not send the cover letter/IEP to Lowell. Lowell’s attorney concedes that, absent evidence to the contrary, we must conclude that the letter/IEP was sent to Lowell.


3

Please see BSEA#03-1917/03-1919, East Longmeadow Public Schools v. DOE and DSS, issued March 27, 2003. This recent decision also analyzes the issues of residency; DOE LEA assignments; the move-in law; 603 CMR 28.03(4)(h); and DSS notice to LEAs.


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