Marlborough and Falmouth Public Schools and Department of Elementary and Secondary Education – BSEA # 10-1450



<br /> Marlborough and Falmouth Public Schools and Department of Elementary and Secondary Education – BSEA # 10-1450<br />

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

Marlborough Public Schools v. Department of Elementary and Secondary Education and Falmouth Public Schools

BSEA # 10-1450

Decision

This Decision is issued pursuant to M.G.L.c. 71B and 30A, 20 U.S.C. 1401 et seq., 29 U.S.C. § 794, and the regulations promulgated thereunder. On August 21, 2009, the Marlborough Public Schools (“Marlborough”) filed a request for hearing at the Bureau of Special Education Appeals (hereinafter “BSEA”) pursuant to 603 CMR 28.10(9). Marlborough challenges the Department of Elementary and Secondary Education’s (hereinafter “The Department”) assignment to it of sole fiscal and programmatic responsibility for the Student’s residential special education placement. Marlborough seeks to share fiscal and programmatic responsibility for the Student’s placement with the Falmouth Public Schools based on parental residence. All parties agreed to have the BSEA issue a Decision without a hearing pursuant to 603 CMR 28 10(9)(c). The parties stipulated that there were no factual disputes and completed submission of memoranda of law in support of their respective positions on November 20, 2009.

ISSUE

Whether the Department’s June 25, 2009 Assignment of sole fiscal and programmatic responsibility to Marlborough is incorrect and should be overturned?

STATEMENT OF FACTS

1. The Student is a now 18 year old young woman who attended Marlborough Public Schools from May 1995, when she was enrolled in the town’s integrated preschool program, until August 2005, when she began attending the Landmark School, a private special education day and residential school. Marlborough has developed and implemented Individualized Education Plans calling for the Student’s placement at the Landmark School each school year since her initial placement there for the 2005-2006 school year. Beginning in the 2007-2008 school year the IEPs developed by Marlborough have provided for the student’s placement at the Landmark school on a residential basis.

2. When the Student is not at the Landmark School, she lives with her mother in Marlborough.

3. The Student’s father has lived in Falmouth since at least 2003. The Student has never attended school in Falmouth. There is no evidence that the Student has ever lived in Falmouth.

4. The Student’s parents are divorced. According to an undated probate court document: the parents share joint legal custody; the mother has “primary physical custody” of the Student; and the Student’s father has visitation for rotating holidays and three weeks of summer vacation (Hrg Request Ex. 4)

5. Until May 2009, Marlborough did not invite Falmouth to participate in any Team meetings it held to develop the Student’s IEPs (Hrg Request Ex. 4).

6. On May 27, 2008, Marlborough developed an IEP calling for the Student’s residential placement at the Landmark School for the 2008-2009 School Year. The IEP correctly listed both parents’ addresses and noted that the placement was not a “cost share.” The Student’s mother accepted the IEP on July 25, 2008 (Hrg Req. Ex. 1)

7. On October 3, 2008, Marlborough submitted a “Request for Clarification of School District Assignment” to the Department. The Request asked the Department to find that the cost of the Student’s residential placement should be shared equally by Marlborough and Falmouth, the towns of parental residence, pursuant to 603 CMR 28.10(3)(b). (Hrg Req. Ex. 1)

8. The Department issued an “Assignment of School District Responsibility” on January 27, 20091 . The Department found that Marlborough and Falmouth should share joint programmatic and fiscal responsibility for the Student’s residential placement pursuant to 603 CMR 28.10 (3)(b). (Hrg Req Ex. 2)

9. On March 16, 20092 Falmouth challenged the assignment of shared fiscal and programmatic responsibility for the Student’s placement. Falmouth pointed out that the mother, a resident of Marlborough, had physical custody of the Student; the Student had attended Marlborough Public Schools prior to her residential placement; the Student had never lived in or attended school in Falmouth; and Falmouth had never participated in any educational planning or programming for the Student. Falmouth asked the Department to “revisit” the assignment in light of the new information concerning the Student’s residential history (Hrg Req Ex 4)

10. On April 14, 2009, the Department “updated” its assignment based on the information that the Student’s mother had been awarded physical custody of the Student in a divorce decree. The Department assigned full responsibility for the Student’s residential placement to Marlborough. The Department cited 603 CMR 28.10 (3)(b) and 603.10 (8)(c)(5) as the applicable regulations (Hrg Req. Ex. 5).

11. Marlborough conducted a Team meeting on May 8, 2009 at which it developed an IEP calling for the Student to continue in Landmark School’s residential program. The IEP, issued on June 19, 2009, noted that the placement would be cost-shared with another school district. The Student’s mother accepted the IEP on July 21, 2009 (Hrg Req Ex. 6).

12. On May 20, 2009, Marlborough submitted a challenge to the Department’s “updated” assignment. Marlborough argued that 603 CMR 10(8)(c)(5) applies only in the event a student is in state custody, which this Student was not, and therefore could not be used to assign sole responsibility to Marlborough (Hrg Req Ex. 7).

13. The Department responded on June 25, 2009, affirming its previous assignment of sole responsibility to Marlborough and alerting Marlborough to the 60 day deadline for filing an appeal to the BSEA. (Hrg Req Ex. 8).

14. Marlborough filed an appeal of the Department’s assignment of sole responsibility for the Student’s residential placement at Landmark School on August 21, 2009 (Administrative Record).

Legal Framework

In Massachusetts, providing and funding the special education program to which a disabled child is entitled is the responsibility of the town or city in which the child lives3 M.G.L.c. 71B. The Supreme Judicial Court has, on several occasions, made it plain that it is the residence of the student that determines the responsible entity. In Walker v. Franklin , 416 Mass 291, 621 NE 2d 376 (1993) the Massachusetts Supreme Judicial Court considered whether the two towns in which divorced parents lived should share responsibility for providing residential special education programs to their children. The Court held that the governing special education statute placed responsibility for implementing all aspects of the statute entirely with the town where the children lived. Noting that the children actually lived with their mother who had court approved physical custody of them, the Court found that the Department’s4 assignment of responsibility to two towns, one of which was not the students’ residence, was inconsistent with Sections §3 and 5 of M.G.L.c. 71B. The Court overturned the Department’s joint assignment, directing instead that the town where the children resided assume full responsibility for their residential special education programs. See also : City of Salem v. BSEA , 444 Mass. 476 (2005), which cited Walker with approval in a residency decision where different facts resulted in a different outcome; In Re : Fall River , 12 MSER 123 (2006); In Re : Fall River , 11 MSER 242 (2005).

The Walker Court also acknowledged that determining a student’s actual residence could at times prove difficult. The Court affirmed the Department’s statutory authority to draft and apply regulations that could clarify the student’s residence and/or assign responsibility for special education programming for any particular student to a school district. The regulations currently used by the Department appear at 603 CMR 28.10. They are, unfortunately, not models of clarity or consistency. The regulatory sections at issue here are:

603 CMR 28.10 (1)
(1) General Provisions. School districts shall be programmatically and financially responsible for eligible students based on residency and enrollment.


(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.


(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.


(8) Department Assignment of School District Responsibility

(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).


(c) The Department shall use the following criteria to assign a city, town or school distrct 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.
(Emphasis added.)

DISCUSSION

Given the clear statutory and judicial directive that student residence controls the identification of the town responsible for providing special education one would think there would be very few disagreements about the application of the Department’s residency regulations. Not so. There seems to be persistent difficulty interpreting and applying them. Discussion of this matter may point to the problem, and to the solution.

I first note that the Department’s interpretation of its own regulations is entitled to deference. Amherst-Pelham School Committee v. Department of Education , 376 Mass. 480 (1978). An agency’s application of its own regulations will be upheld in the absence of clear contradictory factual evidence or judicial instructions to the contrary. The party appealing the administrative decision bears the burden of demonstrating the invalidity of the agency determination. Coggin v. Mass. Parole Board , 42 Mass. App. Ct 584 (1997).

Here there is no factual dispute. The Student’s residence is Marlborough. Her mother, indisputably a Marlborough resident, has “primary” physical custody. The Student has lived in Marlborough her entire school career, moving directly from Marlborough Public Schools to a private special education school and directly from living full time in her mother’s Marlborough home to living during the school week at the private special education school. The Student returns to Marlborough on weekends and vacations. She has never lived or attended school in any other town. According to M.G.L.c. 71B, 603 CMR 28.10(1) and Walker there would seem to be no question that Marlborough, the town where the Student lives, is responsible for assuring that she receives a free, appropriate public education. Indeed the next regulatory section confirms that the school district in which the student resides with her parent is responsible for providing special education services to her. 603 CMR 28.10(2). The difficulty arises when reading on to the next section. Section 10(3) posits a different tack providing that when a student is placed at a residential special education school the parental residence determines the responsible school district. 603 CMR 28.10(3). This regulation on its face is inconsistent with the broader Walker holding. Marlborough relied on this regulation, however, to argue that Falmouth, also a parental residence, should be deemed equally responsible for ensuring a free appropriate public education to this Student. The Department also relied on 603 CMR 28.10(3) both initially when it agreed that both parents’ residences should assume responsibility for the Student’s Landmark placement, and later when it determined that 603 CMR 28.10(8)(c)(5) applied to these facts. That regulatory section permits the Department to “assign” a school district to be responsible for a student who “lives” at a residential school (603 CMR 28.10(3)(b).). Again 603 CMR 28.10(8)(c)(5) directs the Department to determine school district responsibility based on parental residence rather than on student residence.

The difficulty with mechanical application of either of these regulations is that the Walker Court explicitly rejected the broad proposition that a town can be held fiscally responsible for a residential special education placement merely because a parent lives in that town when the student demonstrably does not. The Walker Court directed the Department to use the residence of the student to determine financial responsibility for special education programs. Some of the Department’s residency regulations, particularly the ones at issue here, 603 CMR 28.10(3)(b) and 28.10(8)(c)(5), appear to be based on an assumption that a student abandons her own residence when placed in a residential school. The facts in this matter do not support a finding that the student relinquished her residence in Marlborough at any time.

When the Department considered whether to use parental residence as the basis for assignment of responsibility in this matter, however, it determined that the Student’s circumstances fell within the exception that permitted assignment to the school district where “the student actually resided with either parent immediately prior to” entering the residential placement. That a different result might easily have been produced by slightly different facts points to the difficulty with this regulatory section, but does not detract from the correctness of the final result which is consistent with M.G.L.C.71B and Walker. The Department’s April 14, 2009 assignment along with its clarification of June 25, 2009, correctly determined that Marlborough was the Student’s residence and therefore solely responsible for her special education programming.

As Marlborough’s substantive challenge to the Department’s assignment is based on its assertion that parental residence should have been used to determine school district responsibility for the student, it must fail as inconsistent with controlling law. Procedural challenges posited by the parties are similarly not persuasive. Marlborough did not make a showing that the Department exceeded its statutory authority or abnegated its statutory mission or reached a result contrary to statutory directive when it interpreted its own regulations to place responsibility for the education of this resident student with Marlborough. Northbridge v. Natick , 394 Mass 70 (1985). When the Department undertook clarification of school district responsibility for the Student’s residential placement it did so at Marlborough’s request. Marlborough is in no worse a position now than it was at the time it lodged that request initially in October of 2008. It cannot complain that the Department had jurisdiction only to determine a shared fiscal responsibility, but lacked jurisdiction to determine a sole assignment.

Among other bases for Marlborough’s challenge of the Department’s assignment of responsibility is its assertion that the Department improperly engaged in the assignment process itself. A plain reading of the italicized text of 603 CMR 28.10(8)(c)(5), supra, supports the Department’s determination. Marlborough contends that 603 CMR 28.10(8)(c)(5) comes into play only if one of five criteria set out at 603 CMR 28.10(8)(a) is present. Admittedly none is here. Yet is it a basic principle of administrative law that regulations must, if at all possible, be read to be consistent with and in furtherance of the statute they are implementing. Using that lens I find that the Department properly responded to Marlborough’s original, and subsequent, request for clarification of its responsibility as part of the Department’s statutory mandate to assist school districts. Marlborough’s use of the residency “clarification” process was entirely voluntary and unilateral. The Department’s position that the criteria set out in 603 CMR 28.10 (8)(a) are illustrative rather than exclusive is a reasonable construction of the non-mandatory regulatory language.

I am not persuaded by Marlborough’s argument that Walker does not apply to the facts in this matter because Walker was decided prior to the promulgation of the residency regulations at issue here. On the contrary the Department’s residency regulations evince an attempt, however inartful, to extend Walker principles to a variety of foreseeable living arrangements and custodial situations. To the extent that a reading of the Department’s residency regulations would suggest that assignments of responsibility for special education programming should be based on parental residence rather than student residence that reading must yield to both M.G.L.c. 71B and Walker which direct that education is the responsibility of the town in which the student resides.

Finally, Falmouth’s assertion that Marlborough did not file its appeal of the Department’s assignment within the 60 day time limit set out in 603 CMR 28.10(9)(a) is not supported by the evidence in the record.

CONCLUSION

Keeping the Walker instructions in mind, any reasonable reading of the applicable regulations supports the Department’s assignment of responsibility to Marlborough. The parties agree that the Student resides in Marlborough: It is the town which is the center of her civic and family life, the town in which she eats and sleeps whenever she is not in school, the town to which she returns to live with her mother. Marlborough is therefore responsible for the Student’s special education pursuant to the plain statutory language of M.G.L.c. 71b §3 and §5 and the congruent regulatory language of 603 CMR 28.10(2).

ORDER

The Department’s April 14, 2009 letter of assignment to Marlborough, as clarified by the Department’s letter of June 25, 2009, correctly designates Marlborough as the town of Student’s residence and therefore solely responsible for providing a free, appropriate public education to her. The Department’s assignment is confirmed.

December 11, 2009 _________________________

Lindsay Byrne, Hearing Officer

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

EFFECT OF BUREAU DECISION AND RIGHTS OF APPEAL

Effect of the Decision

20 U.S.C. s. 1415(i)(1)(B) requires that a decision of the Bureau of Special Education Appeals be final and subject to no further agency review. Accordingly, the Bureau cannot permit motions to reconsider or to re-open a Bureau decision once it is issued. Bureau decisions are final decisions subject only to judicial review.

Except as set forth below, the final decision of the Bureau must be implemented immediately. Pursuant to M.G.L. c. 30A, s. 14(3), appeal of the decision does not operate as a stay. Rather, a party seeking to stay the decision of the Bureau must obtain such stay from the court having jurisdiction over the party’s appeal.

Under the provisions of 20 U.S.C. s. 1415(j), “unless the State or local education agency and the parents otherwise agree, the child shall remain in the then-current educational placement,” during the pendency of any judicial appeal of the Bureau decision, unless the child is seeking initial admission to a public school, in which case “with the consent of the parents, the child shall be placed in the public school program”. Therefore, where the Bureau has ordered the public school to place the child in a new placement, and the parents or guardian agree with that order, the public school shall immediately implement the placement ordered by the Bureau. School Committee of Burlington, v. Massachusetts Department of Education , 471 U.S. 359 (1985). Otherwise, a party seeking to change the child’s placement during the pendency of judicial proceedings must seek a preliminary injunction ordering such a change in placement from the court having jurisdiction over the appeal. Honig v. Doe , 484 U.S. 305 (1988); Doe v. Brookline , 722 F.2d 910 (1st Cir. 1983).

Compliance

A party contending that a Bureau of Special Education Appeals decision is not being implemented may file a motion with the Bureau of Special Education Appeals contending that the decision is not being implemented and setting out the areas of non-compliance. The Hearing Officer may convene a hearing at which the scope of the inquiry shall be limited to the facts on the issue of compliance, facts of such a nature as to excuse performance, and facts bearing on a remedy. Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief, including referral of the matter to the Legal Office of the Department of Education or other office for appropriate enforcement action. 603 CMR 28.08(6)(b).

Rights of Appeal

Any party aggrieved by a decision of the Bureau of Special Education Appeals may file a complaint in the state superior court of competent jurisdiction or in the District Court of the United States for Massachusetts, for review of the Bureau decision. 20 U.S.C. s. 1415(i)(2).

An appeal of a Bureau decision to state superior court or to federal district court must be filed within ninety (90) days from the date of the decision. 20 U.S.C. s. 1415(i)(2)(B).

Confidentiality

In order to preserve the confidentiality of the student involved in these proceedings, when an appeal is taken to superior court or to federal district court, the parties are strongly urged to file the complaint without identifying the true name of the parents or the child, and to move that all exhibits, including the transcript of the hearing before the Bureau of Special Education Appeals, be impounded by the court. See Webster Grove School District v. Pulitzer Publishing Company , 898 F.2d 1371 (8th Cir. 1990). If the appealing party does not seek to impound the documents, the Bureau of Special Education Appeals, through the Attorney General’s Office, may move to impound the documents.

Record of the Hearing

The Bureau of Special Education Appeals will provide an electronic verbatim record of the hearing to any party, free of charge, upon receipt of a written request. Pursuant to federal law, upon receipt of a written request from any party, the Bureau of Special Education Appeals will arrange for and provide a certified written transcription of the entire proceedings by a certified court reporter, free of charge.


1

All Department documents in this matter use an incorrect last name for the Parents. The parties understand, however, that the misstated names are intended to refer to this Student’s Parents.


2

The time for filing a formal challenge to the Department’s assignment was extended at Falmouth’s request.


3

“Child” for the purposes of special education refers to students between the ages of three and twenty-two.


4

At that time the “Department of Education” which has since been renamed the “Department of Elementary and Secondary Education” but which functions identically under the same statute(s).


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