Massachusetts Department of Education – BSEA #07-7201



<br /> Massachusetts Department of Education – BSEA #07-7201<br />

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

In Re: Appeal of the Massachusetts Department of Education’s assignment of programmatic and fiscal responsibility1

BSEA # 07-7201

DECISION

This decision is issued pursuant to the state special education law (MGL c. 71B), the state Administrative Procedure Act (MGL c. 30A), and the regulations promulgated under these statutes.

A hearing was held on September 25, 2007 in Malden, MA before William Crane, Hearing Officer. Those present for all or part of the proceedings or who testified by telephone were:

Student’s Father

Director of Student Services for school district A (father’s town, town A)

Director of Pupil Personnel Services for school district B (mother’s town, town B)

Marcia Mittnacht, State Director for Special Education, Mass. Department of Education

General Manager, bus transportation company

Peter Smith, Attorney for school district A

Mary Gallant, Attorney for school district B

Debra Comfort, Attorney for Mass. Department of Education

Laurie Jordan, Court Reporter

The official record of the hearing consists of documents submitted by town A and marked as exhibits A-1 through A-4; documents submitted by town B and marked as exhibits B-1 through B-4; documents submitted by the Massachusetts Department of Education (DOE) and marked as exhibits DOE-1 and DOE-2; and approximately three hours of recorded oral testimony and argument. As agreed by the parties, written closing arguments were due on October 30, 2007, and the record closed on that date.

INTRODUCTION

This is a dispute as to whether Student’s education, including his current out-of-district placement, should be the sole responsibility of school district B or the shared responsibility of school districts A and B.

Parents are divorced. Mother lives in town B and Father lives in town A. Student typically spends two school nights with Father and the remaining nights of the week, as well as the weekends, with Mother.

DOE issued three assignment letters determining responsibility. The most recent letter, dated April 27, 2007, concluded that the two school districts share responsibility. Town A has appealed this assignment of responsibility.

For reasons explained below, I affirm the DOE determination that the two school districts share responsibility.

ISSUES

The issues to be decided in this case are the following:

1. Do both school districts jointly share programmatic and fiscal responsibility for Student’s education?

2. Or, alternatively, is school district B solely responsible?

FACTUAL BACKGROUND

The following facts are not in dispute.

Student Profile . Student is a fourteen-years-old 8 th grader. Student has been diagnosed with Asperger’s Syndrome and executive functioning deficits. He has social and emotional difficulties, which interfere with his relationships with others. Testimony of Father; exhibit A-1 (IEP).

Student is currently and (at all relevant times) has been eligible to receive special education services pursuant to state and federal special education laws and regulations.

Student’s Parents . Student’s parents were divorced in 2001. Prior to the divorce, the family lived together in Massachusetts in town B. Following the divorce, Father left the home in town B, first living in … Massachusetts, and then, for the past five years, living in town A. Town A is within School District A. At all times relevant to this dispute, Mother has lived in town B. Testimony of Father.

Educational History . At all relevant times, Student has been enrolled in school district B. Student has never attended school within school district A. Testimony of Father and the Director of Student Services for school district A.

In 2006, school district B, mother’s town, anticipated placing Student at a private, out-of-district placement, because school district B believed that it was not able to meet Student’s special education needs through its in-district programs. In December 2006, the Director of Pupil Personnel Services for school district B contacted the Director of Student Services for school district A, requesting that district A share the cost of the anticipated private placement. Testimony of Directors from both towns.

On December 19, 2006, school district B held an IEP Team meeting that was attended by both parents. On that date, both parents agreed to the private placement. The Director of Student services for school district A was invited (one day prior to the meeting) to attend the meeting, but was not able to do so because of the short notice. She did not request a postponement of the meeting. Pursuant to an accepted IEP, Student has been attending the private placement since January 2, 2007. Testimony of Father and the Director of Pupil Personnel Services for school district B; exhibit A-1.

DOE Assignment of Responsibility . By letter of January 19, 2007, school district A filed with DOE a request for clarification of school district assignment. By letter of February 12, 2007, signed by the State Director for Special Education (Ms. Mittnacht), DOE assigned programmatic and fiscal responsibility solely to school district B. Exhibit A-1.

By letter of February 27, 2007, district B wrote DOE, requesting reconsideration. In its letter, district B explained that Student spends part of every school week with his Father in town A and enclosed, for DOE’s consideration, Student’s school transportation (or bus) schedule. By letter of March 5, 2007, district A wrote DOE, explaining its position that sole responsibility should remain with district B. Exhibit A-1.

By letter of March 20, 2007, signed by Ms. Mittnacht, DOE affirmed its February 12, 2007 assignment of responsibility solely to district B. The letter explained that in making its determination, DOE had reviewed the Parents’ custody agreement and Student’s bus schedule and concluded that Student resides with his Mother in town B and visits, on a regular basis, with Father in town A. Exhibit A-1.

The Parents’ divorce (or custody) agreement (or decree)2 provides, in relevant part, as follows:

The parties will have shared legal custody of the minor child. The Wife will have physical custody of the minor child and the Husband will have reasonable and flexible visitation as the parties may agree. The Husband will notify the Wife by email of his work schedule as soon as received by him and provide times for visitation for the length of time of the schedule. The Wife will email back whether the times chosen are acceptable.

Exhibit A-1.

The bus schedule, dated December 21, 2006, provides that Student is dropped off in town A on Monday afternoons, he is picked up in town A on Tuesday mornings, he is dropped off in town B (but sleeps in town A) on Thursdays, he is picked up in town A on Friday mornings, and otherwise he is picked up and dropped off in town B. Exhibit A-4.

In a Hearing Request dated April 6, 2007, school district B appealed DOE’s March 20, 2007 determination to the Bureau of Special Education Appeals (BSEA). Exhibit A-2.

The Director of Pupil Personnel Services (PPS) for school district B testified that sometime between April 15 and 18, 2007 she spoke by phone with Anne Silver (Compliance Officer, DOE) to request clarification regarding DOE’s assignment of sole responsibility to district B. Ms. Silver reports directly to Ms. Mittnacht. During the conversation, Ms. Silver told district B’s PPS Director that she believed that she (the PPS Director) was correct and that DOE would be issuing a new assignment letter to that effect. Testimony of district B’s Director of PPS, Mittnacht; exhibits A-2, A-3.

By letter dated April 18, 2007 to the BSEA, district B’s attorney withdrew its Hearing Request , explaining to the BSEA Hearing Officer that district B has had discussions with Anne Silver, who “upon further investigation and consultation with other members of the Department, has agreed to rescind the recent LEA assignment letter and to re-issue a new letter based upon the student’s residence.” Exhibit A-3.

By letter of April 27, 2007, signed by Ms. Mittnacht, DOE reversed its position and assigned programmatic and fiscal responsibility for Student’s education to both school districts A and B. The April 27, 2007 DOE letter relied upon Massachusetts special education regulations (603 CMR 28.10(2)), referenced an April 3, 2007 letter from district B’s Director of PPS (which letter was not received by the Director of Student Services for district A and is not in evidence), noted that district B’s Director of PPS’s letter had enclosed a bus schedule, and explained that the bus schedule documented Student’s residing two nights per week with his Father in town A. Testimony of district A’s Director of Student Services; exhibit A-1.

Ms. Mittnacht testified that the DOE assignment of February 12, 2007 (which was affirmed by letter of March 20, 2007) had been in error. She explained that in making this assignment, DOE had relied too heavily on the custody agreement’s language giving sole physical custody to Mother with visitation rights to Father, and had not focused sufficiently on the fact that Student was spending two school nights each week with Father, as reflected in the bus schedule. Ms. Mittnacht also noted that, as time went by, it became clearer to DOE that the two-nights per week schedule was an on-going living arrangement, as compared to occasional visits with Father. Ms. Mittnacht testified that when DOE realized its mistake, it issued the April 27, 2007 letter assigning joint responsibility to the two school districts.

School district A timely appealed DOE’s April 27, 2007 determination to the BSEA, taking the position that district B should be solely responsible for Student’s educational services.

Father’s Involvement . At all times relevant to this dispute, Father has been employed as a salesman, with the result that he generally has worked each weekend, with time off during the week. For this reason, Father has arranged to see his son (Student) during the week, with some variation as to particular days or hours of each week. He seldom sees his son on the weekends. Testimony of Father.

Since Father’s move to town A five years ago, Student has consistently spent two nights during the week with his Father in town A. Typically, Student spends Monday and Thursday evenings with Father, although occasionally it has been Tuesday night instead of Monday night. Either the school transportation drops Student at Father’s home at the end of the school day, or Mother drops off Student at Father’s home between 5:00 P.M. and 6:00 PM. The morning following Student’s staying overnight with Father, Student takes the school transportation from Father’s home to school. Testimony of Father, Transportation company general manager; exhibit A-4 (bus schedule).

Student typically spends the remaining three weekday nights with his Mother in town B. Student generally spends the weekend nights (Friday, Saturday, and Sunday) with Mother although occasionally, Student spends Sunday night with Father. Testimony of Father, Transportation company general manager; exhibit A-4 (bus schedule).

During Student’s visits in town A, Student and Father typically spend the time having dinner (which Father prepares) together at home, watching television, and wrestling with each other on the bed. Student also uses his time at his Father’s home to complete any homework left over from the school day. Father and Student seldom go into the town A community together, and Student does not have any friends living in town A. Father is further involved with Student through accompanying him to doctor’s appointments and (during the previous school year) to his therapeutic riding program. At Father’s home in town A, Student maintains clothing (which is washed by Father) and other personal belongings such as books, videos, toys, and toothbrush. Father oversees the administration of his son’s medications while Student is with him in town A. Testimony of Father.

DISCUSSION

Student is an individual with a disability, falling within the purview of the Individuals with Disabilities Education Act (IDEA)3 and the Massachusetts special education statute.4

In Walker Home for Children, Inc. v. Franklin (Walker) , the Massachusetts Supreme Judicial Court held that pursuant to MGL c. 71B, assignment of the responsible school district is determined on the basis of the student’s residence .5 The Court further noted that the student’s residence “generally is the same as the domicil [sic] of the parent who has physical custody of the child.”6

More recently in City of Salem v. Bureau of Special Education Appeals , the Court further clarified this issue, stating that “ [w]hile the residence of a child is typically the same as that of the parent who has physical custody of the child . . . the phrase ‘residing therein’ in G.L. c. 71B, § 3, is not so obviously self-defining when considerations such as split families, guardianships, children living with foster parents, relatives or friends, and institutionalized children enter the picture.”

Recognizing the need for further clarification, the Court then stated that DOE “has been given the authority to adopt regulations addressed to resolving the issue of residence in situations in which a child’s legal residence may be in some doubt.”7 The present dispute, where there is a “split famil[y],” presents such a situation.

Through its regulations, DOE has provided the following operative legal standard :

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.

1. . . . .

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 28.00.8

Two things may be gleaned from the regulatory language itself. First, the use of the word “lives” and the fact that the regulatory standard anticipates the possibility of a student living in two places indicate that the focus of the standard is where the student actually lives, in contrast to referencing and relying upon a particular legal status – for example, legal residence or physical custody.9

Second, the above-quoted DOE regulatory standard indicates that “school vacation periods” are not to be considered for purposes of determining where a student lives. Presumably this reflects that the focus of the regulation is on the place where the student lives while attending school .

In addition, in Walker, the Court’s decision includes the following guidance relative to the question of where two students reside for purposes of school district responsibility:

A person’s domicil [sic] is usually the place where he has his home. Home is the place where a person dwells and which is the center of his domestic, social and civil life.10

Although the Court was not considering the DOE regulatory standard in question (which post-dates the Walker decision), the Court’s analysis may be relevant in light of the fact that the purpose, ultimately, of the instant DOE regulatory standard and the purpose of the Court’s analysis are the same – that is, to determine where a student lives or resides for purposes of resolving a dispute regarding school district responsibility.

Finally, I am unaware of any judicial decision that has interpreted the DOE regulatory standard quoted above or that has comparable facts. Although the facts of the Walker dispute bear some similarity to those in the present dispute, there are two important differences – in Walker , as compared to the present dispute, the two students attended a private residential educational school as compared to a private day school, and the Walker students only visited their father as compared to living with him for two days each week . A previous BSEA ruling and a previous BSEA decision are consistent with the above principles.11

I now apply this legal framework to the facts of the instant dispute.

It is undisputed that Student lives with Mother in town B. The only question to be determined is whether, pursuant to the above-quoted DOE regulatory standard, Student also lives with Father in town A, which is within school district A.

Student consistently stays with his Father in town A during two out of the five school days each week. Student stays with Father from the end of the school day or early evening until it is time to go to school the next morning. During these two school days, Father’s home bears all the indicia of Student’s home – for example, Father prepares and serves meals to his son, washes his son’s clothing (which remains with Father in town A), maintains his son’s personal belongings in town A, and oversees the administration of medication. In light of Student’s disabilities (which limit Student’s social life), little significance can be drawn from the fact that he has no friends in town A and rarely, if ever, leaves the home while staying with his Father. In summary, during two days each week, the Father’s home in town A is, in all important respects, the “center of [Student’s] domestic, social and civil life,” and Student is properly considered to be living with his Father at these times.

The only remaining question is whether Student’s living in town A for only two days each week is sufficient to trigger school district A’s responsibility under the DOE regulatory standard. As discussed above, the DOE regulation appears to focus on the place where the student lives while attending school . Accordingly, the fact that the time spent in town A occurs during the school week, as compared to the weekend, takes on added significance. With respect to the school week, Student is essentially splitting the time equally between each parent’s home.

For these reasons, I find that Student’s living with Father for two school days each week is sufficient to satisfy the DOE regulatory standard of living with Father.

School district A argues to the contrary. It points out that, pursuant to the divorce agreement or decree, Mother has sole physical custody as a matter of law. School district A also refers to the statutory definition of “sole physical custody” (“a child . . . reside[s] with and [is] under the supervision of one parent, subject to reasonable visitation by the other parent, unless the court determines that such visitation would not be in the best interest of the child”), which is distinguished from the statutory definition of “shared physical custody” (“a child [has] periods of residing with and being under the supervision of each parent . . . assur[ing] . . . frequent and continued contact with both parents”). School district A takes the position that, given these statutory definitions together with the principles articulated in Walker (discussed above), a court decree giving Mother sole physical custody should be considered conclusive that Student lives only with Mother for purposes of assignment of school district responsibility.12

I do not find this analysis persuasive. The focus of the DOE regulatory standard quoted above is Student’s actual living situation. Under this DOE standard, Mother’s legal status of having sole physical custody of Student is relevant to assignment of school district responsibility only to the extent that this legal status reflects the reality of Student’s living situation. The undisputed facts, as recited in the Factual Background section of this Decision, make clear that Student’s actual living situation over the past five years falls within the above-quoted statutory description of “shared physical custody” rather than within the statutory description of “sole physical custody.”13

For these reasons, I find that for purposes of the DOE regulatory standard, Student is living with both parents, making the two school districts jointly responsible for Student’s education.14

ORDER

Both school districts A and B jointly share programmatic and fiscal responsibility for Student’s education.

By the Hearing Officer,

_________________

William Crane

Date: November 9, 2007

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

THE BUREAU’S DECISION, INCLUDING RIGHTS OF APPEAL

Effect of the Decision

The final decision of the Bureau of Special Education Appeals 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.

Compliance

A party contending that a Bureau of Special Education Appeals decision is not being implemented may file a motion with the Bureau 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. 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 for review of the Bureau decision pursuant to M.G.L. c. 30A.

Confidentiality

In order to preserve the confidentiality of the student involved in these proceedings, when an appeal is taken to superior 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.


1

This decision has been modified for public dissemination. The student’s name and all other information that could reasonably lead to the identification of the student has been rephrased or removed. This is not the “official record” decision.


2

This document has been variously referred to as a divorce or custody agreement, and as a divorce decree. The exhibit itself is simply entitled “Exhibit B – Custody and Visitation” without further indication of the nature of document. It is not disputed that, regardless of its title, the document provides the operative language defining each Parent’s legal relationship to Student.


3

20 USC 1400 et seq . Congress reauthorized and amended the IDEA in 2004, with changes to take effect on July 1, 2005.


4

MGL c. 71B.


5

George H. & Irene L. Walker Home for Children, Inc. v. Franklin, 416 Mass. 291, 295, 621 N.E.2d 376 (1993).


6

Walker, 416 Mass. at 295.


7

City of Salem v. Bureau of Special Educ. Appeals of Dept. of Educ. , 444 Mass. 476, 482, 829 N.E.2d 641, 645 (2005) (internal quotations and citations omitted).


8

603 CMR 28.10(2).


9

The appropriateness of focusing on the place where the student or parent actually lives for purposes of determining school district responsibility is well established. See, e.g., MGL c. 71B, s. 5 (adjusts fiscal responsibility of a city or town for a student’s special education if the parent “moves to a different school district”); MGL c. 76, s. 5 (child has the right to attend the public schools in the city or town where he or she “actually resides”); Doe v. Anrig , 1986-87 EHLR DEC 558:278, No. 81-1731-T (U.S. Dist. Ct., D.Mass. January 15, 1987) (“If the legislature or the [Massachusetts] Department of Education had intended legal residence, rather than physical presence, to be determinative, they would have said so.”); In Re: Lowell Public Schools, Massachusetts Department of Education & Leominster Public Schools , BSEA # 03-2223, 10 MSER 105 (MA SEA 2004) (school district responsibility is appropriately determined on the basis of where the father was actually living); In Re: Georgetown Public Schools, Beverly Public Schools, Salem Public Schools, and Massachusetts Department of Education ., BSEA # 02-1798, 8 MSER 95, 99-100 (MA SEA 2002) (school district responsibility determined on the basis of where mother and father are actually living during the time period in question), aff’d in City of Salem v. Bureau of Special Educ. Appeals of Dept. of Educ. , 444 Mass. 476, 829 N.E.2d 641 (2005); In Re: Andrew M ., BSEA # 96-3249, 2 MSER 133 (MA SEA July 5, 1996) (to read domicile into the federal statute would be inconsistent with statute’s plain meaning); In Re: Wakefield Public Schools , BSEA # 94-0744 (MA SEA October 15, 1993) (distinguishing actual residency from legal residency or domicile).


10

416 Mass. at 295 (internal citations and quotations omitted).


11

In Re: Fall River Public Schools , BSEA # 05-5383, 11 MSER 193 (MA SEA 2005) (BSEA ruling concluding that a student’s spending every weekend with his father was no t, without more, sufficient to establish that student lived with both parents for purposes of school district responsibility under the DOE regulatory standard); In Re: Salem Public Schools and Massachusetts Department of Education and Marblehead Public Schools , BSEA # 02-4739, 9 MSER 379 (MA SEA 2003) (BSEA decision finding that, on the basis of student’s actual living arrangement with each divorced parent, student lived with both parents and the two school districts were therefore jointly responsible, notwithstanding a custody agreement stating that the mother had “primary physical custody”).


12

“Sole physical custody” and “shared physical custody” are defined within MGL c. 208, s. 31.


13

In Mason v. Coleman , 447 Mass. 177, 182-83, 850 N.E.2d 513 ( 2006) (internal quotations and citations omitted), the Massachusetts Supreme Judicial Court explained additional indicia of shared physical custody as follows:

Shared physical custody . . . carries with it substantial obligation for cooperation between the parents. Such an arrangement, by its nature, involves shared commitment to coordinate extensively a variety of the details of everyday life. Shared physical custody necessitates ongoing joint scheduling and provision for supervision and transportation of children between homes, schools, and youth activities.

This, too, describes what Parents have actually been doing to coordinate Student’s living arrangements between the two homes. See testimony of Father.


14

School district A makes two additional arguments. First , it critiques the process used by DOE to determine the responsible school district. However, review of the process used by DOE is not within the BSEA’s jurisdiction. The jurisdiction of the BSEA with respect to school district assignments is established solely through the Massachusetts special education regulations, which provide in relevant part as follows:

The decision of the Bureau of Special Education Appeals shall be limited to a determination of the assigned school district and the effective date of such assignment.

603 CMR 28.10(9)(f). For this reason, I decline to consider the merits of this argument.

Second , school district A questions whether DOE has the authority, under its own regulations, to determine the responsible school district in the instant dispute. Yet, there is no disagreement that the BSEA has general authority to resolve disputes as to which school district is responsible for a student’s education. See 603 CMR 28.08(3) (“resolution of differences of opinion among school districts”). Had the instant dispute come directly to the BSEA (rather than through an appeal of a DOE assignment), the analysis and outcome of the present Decision would have been identical. For this reason, I decline to consider the merits of this argument.


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