Lowell Public Schools – BSEA Ruling # 07-2412



<br /> Lowell Public Schools – BSEA Ruling # 07-2412<br />

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

In Re: Lowell Public Schools

BSEA # 07-2412

RULING ON MOTION TO JOIN THE DEPARTMENT OF SOCIAL SERVICES

Introduction

On December 5, 2006, Student’s Guardian Ad Litem (GAL) filed with the Bureau of Special Education Appeals (BSEA) a Hearing Request against Lowell Public Schools (Lowell) alleging that Lowell failed to provide Student with a free appropriate public education.

On January 23, 2007, the GAL filed with the Bureau of Special Education Appeals (BSEA) a Motion to Join the Department of Social Services ( Joinder Motion ). The instant Ruling addresses the GAL’s Joinder Motion .

The Massachusetts Department of Social Services (DSS) filed an opposition to the Joinder Motion . Lowell did not file a response. A telephonic Motion Hearing regarding the Joinder Motion was held on February 14, 2007 with the GAL, Lowell and DSS.

Summary of the Facts

The following facts are not in dispute.

Student is a sixteen-year-old young man who lives with his mother in Lowell, MA. Student has been placed in the custody of DSS by the Lowell Juvenile Court as a result of a Child in Need of Services (CHINS) proceeding. Student has received services from DSS and may continue to do so.

Lowell has determined Student to be eligible to receive special education services. Lowell’s current IEP for Student (for the period 9/13/06 to 9/13/07) indicates that Student has receptive and expressive language deficits, and that he has a low, overall education ability level. The IEP further explains that Student has repeated 7 th grade three times, and that he attended school for a total of 47 days over a three-year period. The IEP Team found that Student has a learning disability complicated by low communication skills.

During the summer of 2006, DSS placed Student at the Robert F. Kennedy Children’s Action Corps in Lancaster, MA, for a 45-day diagnostic placement. The diagnostic assessment/discharge summary from this program (meeting date 8/21/06) describes Student’s presenting problem, in part, as follows:

[Student] has a history of stealing, gang involvement, substance abuse and verbal aggressiveness. DSS reports indicate that [Student] is disrespectful to his mother, does not follow household rules and refuses to attend school. [Student] was on the run from 6/05 – 3/06 when he resurfaced and was placed on probation. He was placed in foster care on four occasions and ran from each placement.

For the 2006-2007 school year, Lowell assigned Student to the BRIDGE program at the Riverside School in Lowell. The BRIDGE program is an alternative middle school operated by Middlesex Community College and serves 7 th and 8 th graders with behavioral issues or a conduct disorder. Student refuses to attend this program. Lowell has made tutoring available to Student. The GAL reported recently that Student is not participating in the tutoring.

Lowell recently conducted a psychological evaluation of Student, but no evaluation report or other feedback from the evaluator has yet occurred. Lowell is in the process of scheduling a Team meeting to consider the results of the evaluation and to make any adjustments to Student’s current IEP.

Legal framework

The issue before me is whether DSS should be joined as a necessary party. Pursuant to BSEA Hearing Rule 1F, 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. Factors that are 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 DSS) 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, the department of mental retardation, 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 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.2

Discussion

The history of this case provides a complex and troubling context. During the past several years, Student has not participated, in any meaningful way, in the education or special education services which have been offered by Lowell. Student’s alleged, highly at-risk behavior, in combination with his age, family context, and educational history, present the real possibility of complete disengagement from the educational system.

Any educational approach that has the possibility of providing meaningful benefit to Student not only must respond appropriately to his special education needs but also must take into consideration his non-educational needs that fall within the responsibility of DSS. The two sets of needs are inextricably intertwined.

I am also mindful that the Juvenile Court (which granted DSS custody of Student) may be making further determinations regarding DSS’s responsibilities, and those determinations may possibly take into account any BSEA findings regarding Student’s special education needs and how they should be met.

An additional consideration is the possibility that the BSEA may order DSS to provide services in addition to the special education and related services which are the responsibility of Lowell. Pursuant to the above-quoted statutory authority, this might be justified in the event that DSS services are necessary to ensure that Student will be able to access or benefit from Lowell’s special education program and services.

DSS vigorously disputes the authority of a BSEA Hearing Officer to order such additional services, and has provided authority in support of its position. DSS argues that joinder should be denied because no such authority exists.

A single evidentiary hearing to address the merits of Student’s special education claims and any DSS responsibility will likely be the most efficient and most appropriate context within which I may consider the extent of my authority to order DSS to provide services and if such authority exists, the appropriateness of my doing so in the instant dispute.

During such hearing, the following would likely become more clear: (1) the extent of Lowell’s special education obligations to Student, (2) what additional services, if any, may be necessary for Student to access or benefit from Lowell’s provision of special education services, (3) whether DSS may provide such additional services in accordance with its statute, regulations, and policies, and (4) whether I have the authority to order that DSS provide those particular services to Student within the context of the present dispute. As a party in the evidentiary hearing, DSS will likely provide useful evidence and further argument that will assist my resolution of some or all aspects of this dispute.

For these reasons, I find that there is a significant risk of prejudice to Student in the absence of DSS’s participation as a party in the BSEA proceedings. I further find that there is the possibility that I will determine that DSS should be ordered to provide additional services.

Accordingly, joinder is warranted under BSEA Hearing Rule 1F.

Order

The GAL’s Joinder Motion is ALLOWED .

This matter will proceed, as scheduled, with a Hearing Officer-initiated telephone conference call at 1:00 PM on March 8, 2007 . During the conference call, or at any other time, any party may request that hearing dates be scheduled.

By the Hearing Officer,

_________________

William Crane

Date: February 20, 2007


1

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


2

E.g., In Re: Gloucester Public Schools , BSEA # 04-3543, 10 MSER 389 (SEA MA 2004); In Re: Lowell 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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