Milton Public Schools v. Department of Education and Boston Public Schools – BSEA # 07-4642



<br /> Milton Public Schools v. Department of Education and Boston Public Schools – BSEA # 07-4642<br />

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

In Re: Milton Public Schools v. Department of Education and Boston Public Schools

BSEA # 07-4642

DECISION

This decision is issued pursuant to the Individuals with Disabilities Education Act (20 USC 1400 et seq. ), the state special education law (MGL ch. 71B), the state Administrative Procedure Act (MGL ch. 30A) and the regulations promulgated under these statutes.

On February 8, 2007, Milton Public Schools (Milton) filed a Request for Hearing against the Department of Education (DOE) and Boston Public Schools (Boston), appealing a Local Educational Agency (LEA) determination entered by the Department of Education (DOE) on August 2, 2006, assigning sole fiscal and programmatic responsibility for Student in the instant case to Milton.

On February 23, 2007,the Parties jointly requested a postponement of the Hearing and that a Pre-Hearing Conference be held. The request to postpone the Hearing was granted, pursuant to a Pre-hearing telephone conference call on February 26, 2007. During the pre-hearing conference call, the parties agreed that the case should be decided on submission of documents and briefs only. Timelines for submissions of briefs and responses, all due by the end of March 2007, were established and an order reflecting the same was issued on February 27, 2007.

Thereafter, Milton and DOE1 requested extensions of the timelines on March 13, March 27, and March 29, 2007. The requests were granted and orders were issued reflecting the new and final timelines:

1. Milton’s brief and documents due by the close of business on March 23, 2007.

2. DOE and Boston’s brief and documents postmarked by April 17, 2007.

3. Milton’s Response to DOE and Boston’s brief and documents postmarked by April 27, 2007.

The official record of the hearing consists of Milton’s Brief in Support of Review of the Department’s Assignment of Financial Responsibility and documents marked as exhibits ME-1 through ME-9, received on March 23, 2007; the DOE Brief and exhibits DE-1 and DE-2, received on April 17, 2007; and Boston’s Brief and exhibits postmarked April 17, 2007 and received via fax on April 18, 2007. The record closed on April 30, 2007 when Milton’s response was received.

ISSUES

1. Whether the Department of Education’s August 2, 2006 determination that Milton was fiscally and programmatically responsible for Student in the above referenced matter was correct. If not,

2. Whether the determination should be remanded to the DOE for further investigation and/or Boston (together with Milton) should be determined to be equally fiscally responsible for Student’s education.

POSITION OF THE PARTIES

Milton’s Position:

Milton asserts that DOE’s assignment is flawed because Student, his Parent, or legal guardian has never resided in Milton. According to Milton, the DOE based its determination to assign Milton financial responsibility for Student’s education on the fact that a paternal uncle of Student (Uncle) has resided in Milton since June 1, 2004. Milton asserts that Uncle has been denied legal status regarding Student who was placed in the custody of the Department of Social Services (DSS) in 2002. Student is now nineteen years of age and has not lived with Uncle since 2002. Milton states that Student resided in Boston in 2001when he was placed in the custody of DSS. Prior to that, Student had been living with Uncle since he was a child, first in Africa and later in Boston. After DSS gained custody of Student, DSS covered Student’s living expenses and Boston was responsible for his education.

Milton states that the most recent IEP it has was the one signed by Student when he turned 18 years of age, covering the period from March 2006 through March 2007. It further states that it has been denied any information regarding who signed the IEP and was responsible for Student’s education while he was in DSS custody. Also, the form submitted by Boston to the DOE in May 2006, requesting a change of LEA assignment, lists Student’s residences for the previous three years none of which is in Milton. Said letter incorrectly states that Student’s Uncle, who resided in Milton at the time, was his guardian. The DOE determined that Milton was fiscally responsible for Student based on its understanding that Student’s uncle was either his parent or guardian.

Milton challenges the DOE determination and asserts that DOE’s investigation was insufficient, leading it to conclude erroneously that Milton bore responsibility for Student. Milton relies on 603 CMR 28.10(8)(a)(1) and (c). Since Student’s parents have never resided in the United States, and since Student lived with Uncle in Boston at the time his custody was transferred to DSS, then according to Milton, Boston is solely responsible for Student.

Milton also argues that the DOE erred in assuming that when Uncle stated in a colloquial manner that he was responsible for Student in the United States, it gave this “guardianship” the legal meaning under the law. Student’s Uncle is neither the parent nor has he ever been found by a court to be Student’s legal guardian.

Lastly, Milton asserts that Student turned 18 years of age on February 28, 2006 and has at no time before or after his 18 th birthday been a resident of Milton. Since Student signed his most recent IEP, Milton can only assume that he does not have a legal guardian responsible for him and therefore, the district responsible for his education should be the district where Student resides, which is not Milton. For this, Milton relies on 603 CMR 28.10(2)(b).

According to Milton, both DOE and Boston engaged in “fuzzy logic” to bolster DOE’s erroneous decision. Milton requests that to the extent the BSEA can find that Boston is the responsible party it do so. It also requests that the BSEA vacate the DOE’s assignment of responsibility for Student’s education to Milton. If the BSEA cannot determine which is the responsible district, then Milton requests that the case be remanded to the DOE for further investigation.

Boston’s Position:

Boston supports DOE’s determination that Milton is financially responsible for Student’s education, based on Uncle’s residency consistent with 603 CMR 28.00 et seq. and G.L. 71B. According to Boston the facts and law do not support a conclusion that Boston bears responsibility for Student.

Boston argues that Uncle is Student’s parent/guardian for purposes of LEA assignment of responsibility. It states that even if the historical facts of the case are unclear, Student lived with Uncle when Student first arrived from Africa, giving Uncle physical custody of Student until DSS obtained custody in 2002. Even after Student’s custody transferred to DSS, Boston continued to be the responsible LEA based on Uncle’s continued residence in the district. Boston states that responsibility of Student based on residence of Uncle transferred to Milton when Uncle moved there. According to Boston, Milton has provided no evidence to show that Uncle was not Student’s de facto parent thereby exonerating Milton from financial and programmatic responsibility for Student based on Uncle’s residence. For Milton to argue that Boston is responsible for Student because Uncle lived there is disingenuous. Since Student was not surrendered or freed for adoption while he lived in Boston, according to the district, 603 CMR 28.10 (8)(c)(1) is not applicable.

Boston relies on City of Salem v. Bureau of Special Education Appeals , 444 Mass. 476, 483 (2005) in distinguishing Walker Home for Children v. Town of Franklin , 416 Mass. 291, 295 (1993) from the case at bar. As the court reasoned in City of Salem , “the Walker case is distinguishable and cannot be read to be instructive when a child is in DSS custody and lives at his out-of district residential school.” City of Salem at 482. In City of Salem the Court upheld the DOE’s determination to split the financial responsibility for that student’s residential placement between the two districts where the student’s divorced parents lived.

Boston further argues that the fact that Student in the instant case never resided in Milton has no bearing on the result, as the issue is the district in which the parent, guardian, or person responsible for Student, resides.

Lastly, Boston disputes Milton’s argument that Student, having reached the age of majority, has any bearing in the resolution of this matter. In support of this position, Boston states that G.L. c.71B, §1, defines “school age child” as “any person of ages three through twenty-one who has not attained a high school diploma or its equivalent.” Boston reasons that since Student has not attained a high school diploma he is clearly covered under the statute as a school age child. Boston seeks that DOE’s LEA determination of August 2006 be upheld.

DOE’s Position:

DOE states that under Massachusetts General Laws c.71B it is responsible to promulgate regulations regarding the financial and programmatic educational responsibility of municipalities regarding school age children. As such, it has promulgated regulations consistent with this mandate which can be found at 603 CMR 28.10 et seq.

In the case at bar, DOE states that none of the regulations promulgated by the DOE is on point with respect to the facts herein. DOE states that the applicable regulation would be 603 CMR 28.10 (3)(c), however, since Student does not have a Parent or a legal guardian residing in Massachusetts, the DOE assigned responsibility in accordance with 28.10 (8)(a) which allows the DOE to assign a school district for children who are in the custody of DSS, who receive special education in a residential placement and who have no parent or legal guardian in the Commonwealth. Exercising its discretion under said regulation, and since Student does not fit into any of the criteria specifically set forth in subsection (c) of 28.10 (8), DOE assigned responsibility based upon what it thought to be reasonable under the circumstances. Since it appeared to the DOE that Uncle was analogous to a parent and was acting as a parent or guardian, it assigned responsibility to the district where Uncle resided, namely, Milton.

FINDINGS OF FACT

· Born in the Republic of Congo, Africa, on February 27, 1988, Student is currently 19 years old. He presents with social, emotional and behavioral issues requiring a therapeutic, supportive environment, and is currently receiving educational services in residential placement under an IEP. This IEP runs from March 2006 to March 2007. (M-2)

· Student’s father died when Student was an infant. In 1992 Student’s mother realized that she could not care for Student and Uncle took him in. (ME-1)

· When Uncle moved to Boston, Student came with him and Student resided in Boston with the rest of Uncle’s family. (ME-1) It is Uncle’s belief and information that Student’s mother remained in Africa. ( Id. )

· While in Boston, Uncle took the necessary steps to address Student’s special education needs. (ME-1)

· On or about 2000, Student expressed an interest in severing family ties with Uncle. Uncle states that he was informed by DSS that Student had a right to do so and there was nothing Uncle could do. In 2002, while Uncle was still residing in Boston, Uncle signed “some papers” and Student was placed in the custody of DSS. (ME-1) From that point on, all communication and ties between Student and Uncle were severed, and Uncle was denied any access to information on Student, his whereabouts, progress at school, health and other information. (ME-1) Student never again lived with or saw Uncle. (M-1)

· No court appointment establishing a guardianship or any other type of legal relationship between Student and Uncle existed during the time that Student resided with Uncle in the United States. (M-1)

· Uncle moved to Milton on June 1, 2004. (ME-1)

· Student’s IEP for the January 2004- January 2005 school year, drafted by Boston, calls for Student to receive educational services at McKinley Technical, in Boston, an in-district placement. (BE-G)

· Student has had a number of psychiatric hospitalizations including one in July 2005 which was followed by a six month hospitalization at St. Vincent’s Transitional Care Unit from August 2005 through February 2006. Prior to this, Student had been living in a foster home, attending the Ithaca Program in Brockton, MA. (BE-B)

· A Student Information sheet signed on February 6, 2006, which includes a list of Student’s residences for the previous three years, states that since May 2003, Student has resided in Rutland, Taunton, Roxbury, Salem and New Bedford. (ME-4) The same document states that Student’s Mother’s name is unknown and that father is deceased. The document also states on page one that Student is placed at St. Vincent’s School and that the DSS fully funds this placement. Lastly, the section listing all of “father’s” residences for the last five (5) years provides Uncle’s address “[ ] St., Milton…” and in a different handwriting notes “per DSS”. The document is signed by Shavon Fulcher, of DSS. This document also states that Student has not been surrendered for adoption and that parental rights have not been terminated. (M-4; BE-E)

· On or about February 16, 2006, Student began attending St. Vincent’s School, a residential/educational program, in Fall River. (ME-4) This placement was fully funded by DSS. ( Id. )

· According to DOE, in February 2006, DSS asked for a DOE determination as to which school district was responsible for providing Student with special education services. (ME-4)

· On March 3, 2006, Kathy Monahan, Education Coordinator, CFP/DSS wrote to Marie Bushfan-Bond of Boston Public Schools stating that Student was in the custody of DSS through a voluntary agreement2 . (DOE-2; BE-B) She states that Student had been living with his guardian/uncle’s family in Brighton, after Mother relinquished her parental rights. Student had been removed from Uncle’s house as a result of abuse and Student’s escalating behaviors including homicidal and suicidal ideation. Student underwent several psychiatric hospitalizations until July 2005 after which he was transferred to St. Vincent’s Transitional Care Unit where he remained from August 2005 through February 2006. (DOE-2; BE-B) Prior to his hospitalization in July 2005, Student had been residing in a foster home in Brockton, MA. Ms. Monahan requested a meeting to discuss a cost-share agreement for Student as he did best when he was placed in residential programs with around the clock structure. (DOE-2; BE-B)

· Also on March 3, 2006, DSS forwarded to Boston a “Notice to LEA”, explaining that Student, now 18 years old, had entered into a voluntary placement agreement with DSS. (BE-B) Said agreement lists Ms. Fulcher as Student’s Parent and the contact person in case of emergency, and Heidi S. Koretz as the social worker assigned to Student. (BE-B)

· Anne Steiner of DSS, wrote to Paul Howe, Unified Student Services, Boston Public Schools, on March 8, 2006, notifying him that DSS wished to initiate a cost-share agreement with Boston for Student’s placement at St. Vincent. (BE-C) The letter states that DSS is not sure of how Uncle obtained custody of Student in Africa and that Uncle had given DSS custody of Student in 2002. According to Ms. Steiner, Uncle was now living in Milton. (BE-B)

· Student’s Team met in Boston on March 28, 2006 to discuss Student’s IEP. (ME-2) Under the IEP drafted by Boston, covering the period from March 2006 through March 2007, the school district is only responsible to cover the educational portion of Student’s program. (ME-2) This IEP calls for services in a small, self-contained classroom, a behavioral plan, and social/emotional services, reading, and speech and language therapy weekly. ( Id. ) The IEP also calls for an extended school year. Student accepted this IEP in full on May 1, 2006. (ME-2)

· On April 4, 2006 the DOE assigned programmatic and fiscal responsibility for Student as an “abandoned” student to Boston, pursuant to 603 CMR 28.10 (3)(b). (ME-5; DOE-2; BE-D) The DOE argued in its brief that this assignment was done based on Uncle’s residency in Boston. The Student and Parent sections of the DOE’s assignment letter stated,

Student: DSS placed Student at St. Vincent’s in Fall River. The
student’s IEP was written by the Boston Public
Schools, determining an out-of-district placement in
effect 2004-2005.
Parents: The student does not have any parents in this country.
His uncle [ ], is the student’s guardian. The last
address that DSS is able to verify is …in Roxbury
where [Uncle] resided between 2001 and May
2005. (ME-5; DOE-2; BE-D)

· On May 5, 2006, Boston requested that the DOE reevaluate the April 4, 2006 assignment of programmatic and fiscal responsibility for Student to Boston alleging that the only reason it had been assigned responsibility was because the last known address for Student’s “uncle/ guardian …was in Boston.” (ME-5; BE-E) Boston further stated that Student’s Uncle had moved to Milton and provided an address in Milton. Boston alleged that Uncle had not surrendered Student for adoption and that his parental rights had not been terminated. (ME-5; BE-E)

· On August 2, 2006, the DOE issued a new Assignment of School District Responsibility assigning programmatic and fiscal responsibility to Milton. (ME-6; DOE-2; BE-F) DOE based this assignment on the following:

Student: DSS placed this student at St. Vincent’s in Fall River. The IEP that was submitted to this office was written by the Boston Public Schools, determining in-district placement, in effect 2004-2005.

Parents: The student does not have any parents in this country. His uncle, [ ] is the student’s guardian. Mr. [ ] is residing at …Street in Milton.

Accordingly, under 603 CMR 28.10(8)(d), Milton was told to assume immediate responsibility for Student. (ME-6; DOE-2; BE-F)

· Some time after August 2, 2006, Milton sought clarification from DOE on the LEA assignment finding Milton fiscally and programmatically responsible for Student. (M-3) In its request for clarification, Milton states that the DOE assignment is flawed because Student’s Uncle is the only person identified as a relative of Student in the United States, but there is no document establishing a legal guardianship with Uncle. Milton asserted that Student was a “Boston student with no legal guardian.” (ME-3) Milton also raised questions regarding the cost-share agreement with the DSS given that Student was over eighteen years of age. (ME-3)

· On September 28, 2006, Milton renewed its request for additional information from DOE regarding the LEA assignment because the information it received from DOE on September 18, 2006 failed to provide any legal documentation regarding guardianship. (M-7) Milton argued that DOE’s assignment was based on vague and unsubstantiated information regarding an alleged guardianship by Uncle who resided in Milton. (ME-7) Additionally, Student was over 18 years of age and had signed his own IEP. (ME-7)

· In response to Milton’s request, DOE responded on January 17, 2007, explaining that it had received information from DSS that Uncle had gone to Africa and brought Student back with him to the United States and acted as his guardian. The letter further stated that according to DSS, Uncle had obtained guardianship/parental authority in Africa and that he was Student’s only relative in the United States. (ME-8) It also stated that from 2001 through May 2005, Uncle resided in Boston and thereafter moved to Milton where he continued to reside. According to DOE, the fact that Student had not resided in Milton or that he turned eighteen years of age did not alter its determination. Rather, DOE relied on the fact that Uncle had acted as Student’s guardian and was his only relative in the United States. DOE confirmed its determination that Milton was fiscally and programmatically responsible until June 30, 2007. (M-8)

· On November 20, 2006, Student began living at a DSS funded foster home in Fall River. At that time, Student had been accepted at Southeast Alternative School in Middleboro. (ME-9; BE-H) DOE determined that from July 1, 2007 forward, Fall River would be responsible for Student’s education. (ME-8; BE-H)

· On January 18, 2007, the DOE issued a Notice of Requirement to Assume Programmatic and/or Financial Responsibility for Student warning Milton that DOE could withhold future special education funds from the district if it failed to assume its financial and programmatic responsibility for Student. (ME-9;)

· Milton states that it has never been invited to a Team meeting for Student and DSS has denied all of its requests for information.

· Student has never resided in Milton and has never been enrolled in the Milton Public Schools. (ME-1)

CONCLUSIONS OF LAW

Under Massachusetts General Laws c.71B, the DOE has been charged with the responsibility to promulgate regulations regarding the financial and programmatic educational responsibility of municipalities regarding school age children, consistent with M.G.L. 71B §33 . Consistent with this mandate, the DOE has promulgated regulations specifying which school committee is responsible for students in a variety of situations.4

These regulations allow, at the request of a school district or agency, DOE to assign responsibility to a city, town or school district when students are in living situations as described in 603 CMR 28.10 (3) or (4)5 . DOE may also initiate this process on its own initiative. 603 CMR 28.10 (8). These regulations limit the scope of DOE’s jurisdiction to issue LEA assignments to situations falling under 603 CMR 28.10 (3) and (4).

The matter before me was initiated in March 2006 when DSS requested DOE to make an LEA assignment regarding Student. DSS was looking to enter into a cost-share agreement for placement of Student as a residential student at St. Vincent’s. On April 4, 2006 the DOE assigned programmatic and fiscal responsibility for Student as an “abandoned” student to Boston, pursuant to 603 CMR 28.10 (3)(b). (ME-5; DOE-2) Said section of the regulations mandate that the school district where the parent or legal guardian resides assume financial and programmatic responsibility for students whose IEP require an out of district placement, where the student lives and receives special education services in a residential school. 603 CMR 28.10 (3)(b).

The DOE based its determination on the residence of Uncle, Student’s alleged guardian, in Boston. In reaching its determination DOE relied on the representations made by Boston and DSS, but did not have legal documentation establishing Uncle’s alleged guardianship of Student. On May 5, 2006, Boston wrote to the DOE stating that Uncle, Student’s guardian, had moved to Milton. Based on this information, Boston requested that the DOE reevaluate the LEA assignment. Relying on the same regulation, DOE issued a new determination on August 2, 2006 assigning fiscal and programmatic responsibility for Student to Milton. The appeal before me involves Milton’s challenge of DOE’s determination of August 2, 2006, upheld on January 17, 2007. In Massachusetts, w hen a district that has been assigned responsibility disputes said assignment it may appeal to the Bureau of Special Education Appeals within 60 days of the most recent notification of assignment. 603 CMR 28.10 (9). In the case at bar, Milton’s most recent notification of assignment for Student was issued on January 17, 2007. Milton properly appealed said determination to the BSEA on February 13, 2007.

LEA assignment cases rely heavily on the particular facts of the case at the time the placement of the student occurs. The Massachusetts DOE made significant efforts to draft regulations that cover the most plausible scenarios regarding custodial arrangements for eligible Students, consistent with federal law. Section 28.10 et seq. of the regulations base fiscal and programmatic responsibility for eligible students on their place of residence. Under MGL c. 76 §5 school age children in Massachusetts have a right to attend the public school of the town where they reside6 . Addressing this issue, the Massachusetts special education regulations, consistent with MGL c. 71B §5, provide that , the school district where a student resides bears programmatic and financial responsibility for the student’s education,
(a) When students live with their parent(s) or legal guardian…

(b) When students are 18 years of age or over and they have established their own residences as adults.

(c) When students have been placed or are funded by the Department of Social Services in a foster home located within Massachusetts. 603 CMR 28.10 (2).

Determining the residence of a student may require a more complex analysis, but Massachusetts courts have provided guidance regarding this issue:

When addressing residency, the words residence and domicile have been interpreted to be synonymous when used in statutes involving residency requirements. Watson v. Town of Lexington 1993 WL 818774, 1 Mas L. Reptr. 261 (Mass. Super. 1993); See Hershkoff v. Board of Registrars of Voters of Worcester , 366 Mass. 570, 576, 321 N. E. 2d 656 (1974); Teel v. Hamilton Wenham Regional School District , 13 Mass. App. Ct. 345, 349, 433 N.E. 2d 907 (1982). A domicile has been defined as the “place where a person dwells and which is the center of [an individual’s] domestic, social and civil life”, the place where that person has his home7 . Dane v. Board of Registrars of Voters of Concord , 374 Mass. 152, 161-162, 371 N.E. 2d 1358 (1978); Hershkoff v. Board of Registrars of Voters of Worcester , 366 Mass 570 (1974). In this regard, a minor who has not been emancipated is “generally said to lack capacity to acquire such a domicile of choice.” Hershkoff, 366 Mass. at 577. When residence issues involve children, the Court in George H. and Irene L. Walker Home for Children, Inc. v. Franklin , 416 Mass. 291, 296, 621 N.E. 2d 376 (1993) clarified that a minor child’s domicile or residence generally is the same as that of the parent who possesses physical custody of the child. See also, Lydia D. et al. v. Thomas W. Payzant et al. , 17 Mass. L. Rep. 272 (2003); 2003 Mass. Super. LEXIS 471. It is in this context that the DOE’s assignment of fiscal and programmatic responsibility is reviewed. In Re; Fall River Public Schools , BSEA #06-4240 (5/12/2006, Figueroa).

In light of the general parameters offered by the regulatory scheme, and court analyses supra , I turn to the facts in this case. DOE’s Assignment of School District Responsibility issued on April 4, 2006, assigning responsibility to Boston, and on August 2, 2006, assigning responsibility to Milton, both state that DOE relied on 603 CMR 28.10(3)(b). (ME-6; BE-D) The section regarding “Student” in both assignments contains the following information,

Student: DSS placed Student at St. Vincent’s in Fall River. The student’s IEP
was written by the Boston Public Schools, determining an out-of-
district placement in effect 2004-2005. (BE-D)
Student: DSS placed Student at St. Vincent’s in Fall River. The IEP that was
submitted to this office was written by the Boston Public Schools,
determining an in-district placement in effect 2004-2005. (ME-6)

The above sections present contradictory information regarding the type of placement, referencing an IEP in effect from 2004 to 2005. BE-D states that the IEP in effect on 2004-2005 called for an out-of-district placement , while ME-6 calls for an in-district placement for the 2004-2005 IEP. The cover sheet of the 2004-2005 IEP, BE-G, states, under assigned school information that Student was assigned to McKinley Technical, which is part of the Boston Public Schools, therefore, an in-district placement. The section regarding Parents contains similar information in both letters of assignments, differing only as to the location of Uncle’s residence,

Parents: The student does not have any parents in this country. His uncle [ ],
is the student’s guardian. The last address that DSS is able to verify
is …in Roxbury where [Uncle] resided between 2001 and May
2005. (BE-D)

Parents: The student does not have any parents in this country. His uncle [ ],
is the student’s guardian. [Uncle] is residing at … in Milton. (BE-D)

603 CMR 28.10 (3)(b), the regulation on which DOE relied in making both LEA assignments of fiscal and programmatic responsibility, requires that the following criteria be met:

1. the student has a parent(s) or legal guardian residing in Massachusetts;

2. student’s IEP requires an out-of-district placement;

3. student lives and receives special education services at a residential school.8

Since DOE relied on Student’s 2004-2005 IEP, which actually called for an in-district placement at McKinley Technical in Boston, as stated in both letters of assignment9 , then both letters of assignment are inconsistent with the regulation on which DOE relied to make the assignments. Criteria (2) was not met since the IEP on which DOE relied did not call for an out-of-district placement as required by 603 CMR 28.10 (3)(b), but rather, an in-district Boston placement. (BE-G) I therefore find, that both of DOE’s assignments (the April 4, 2006, assigning Boston, and the August 2, 2006, reaffirmed in January 2007, assigning Milton) are inconsistent with regulation 603 CMR 28.10 (3)(b). Both assignments are therefore, set aside as invalid.

This case becomes more confusing when one considers that BE-B, DSS letter of March 3, 2006 to Boston, states that DSS is looking to enter into a cost-share agreement for Student’s “continued care and education.” This request seems to be seeking a cost-share into the future, not retroactively. However, since the original letter of DSS to the DOE was not a part of the documents submitted by any of the parties, the actual request is unclear without looking at the information found in other exhibits. ME-4, BE-E state that “DSS fully funds St. V[incent’s] School as of 2-16-06.” If DSS were fully funding this placement at that point, then it would be logical to conclude that DSS was seeking a cost-share from the time it began to fund that placement fully, into the future. Since DOE’s assignment of financial and programmatic responsibility provide no direction regarding the period for which it assigned responsibility, I will discuss both scenarios.

Review of the facts in the instant case shows that Student does not fall neatly into any of the categories described in 603 CMR 28.10 et seq. Therefore, i n order to ascertain the appropriate district to be responsible for Student consistent with federal and state law, I turn to the relevant facts in the record to ascertain Student’s legal status for purpose of his residence. To the extent that the arguments of the Parties are relevant or helpful in resolving this matter, they are incorporated into the discussions below.

LEA Assignment for the Period between August 2005 and February 2006:

The documents submitted into evidence do not establish the specific period of time for which the LEA assignment was sought. The record however, shows that following a psychiatric hospitalization in July 2005, Student spent six months at St. Vincent’s Transitional Care Unit (between August 2005 and February 2006). (BE-B) Prior to entering St. Vincent’s Transitional Care Unit, he lived in a foster home in Brockton and attended the Ithaca Program in that district. ( Id. ) No information was offered as to what type of placement St. Vincent’s Transitional Care Unit is. An LEA assignment for the period in which Student was at St. Vincent’s between August 2005 and February 2006, presumes that Student was available to receive an education and that an education could be offered in that setting. Since Student was a minor in the custody of DSS, for purposes of LEA responsibility, I turn to the residence of the “parent” with whom Student was living prior to DSS taking custody. George H. and Irene L. Walker Home for Children, Inc. v. Franklin , 416 Mass. 291, 296, 621 N.E. 2d 376 (1993).

The record lacks any documentation to support a finding that Uncle had legal custody of Student, or that he had been declared Student’s guardian by any court. Establishing the relationship between Uncle and Student is relevant to the outcome. In this regard, Boston argues that at a minimum, Uncle had physical custody of Student until custody transferred to DSS in 2002 pursuant to a voluntary placement agreement. This agreement is referred to, but was not submitted into evidence. Student had no further contact with Uncle after custody transferred in 2002. The question then is whether Uncle can be considered Student’s parent within the meaning of IDEA and the Massachusetts regulations, even if no legal document memorializing this custodial arrangement can be produced.

20 USC §1401(23) defines Parent as:
(A) a natural, adoptive, or foster parent of a child (unless a foster parent is prohibited by State law from serving as a parent);

(B) a guardian (but not the State if the child is a ward of the State);

(C) an individual acting in the place of a natural or adoptive parent (including a grandparent, stepparent, or other relative) with whom the child lives, or an individual who is legally responsible for the child’s welfare; or

(D) except as used in sections 1415(b)(2) of this title and 1439(a)(5) of this title, an individual assigned under either of those sections to be a surrogate parent.

Consistent with the statute, the federal regulations at 34 CFR §300.30, provide a more detailed definition of Parent
(a) Parent means–

(1) A biological or adoptive parent of a child;

(2) A foster parent, unless State law, regulations, or contractual obligations with a State or local entity prohibit a foster parent from acting as a parent;

(3) A guardian generally authorized to act as the child’s parent, or authorized to make educational decisions for the child (but not the State if the child is a ward of the State);

(4) An individual acting in the place of a biological or adoptive parent (including a grandparent, stepparent, or other relative) with whom the child lives, or an individual who is legally responsible for the child’s welfare; or

(5) A surrogate parent who has been appointed in accordance with § 300.519 or section 639(a)(5) of the Act.

(b) (1) Except as provided in paragraph (b)(2) of this section, the biological

or adoptive parent, when attempting to act as the parent under this part and when more than one party is qualified under paragraph (a) of this section to act as a parent, must be presumed to be the parent for purposes of this section unless the biological or adoptive parent does not have legal authority to make educational decisions for the child.

(2) If a judicial decree or order identifies a specific person or persons under paragraphs (a)(1) through (4) of this section to act as the “parent” of a child or to make educational decisions on behalf of a child, then such person or persons shall be determined to be the “parent” for purposes of this section.10

The Massachusetts special education regulations define parent as a father or mother and further explain, that, “for purposes of special educational decision-making, parent shall mean father, mother, legal guardian, person acting as a parent of the child, foster parent, or an educational surrogate parent appointed in accordance with federal law.” 603 CMR §28.02(15). The legal authority of a parent transfers to the student when the student turns 18 years of age. 603 CMR §28.02(15).

Pursuant to 20 USC §1401(23)(C) and 34 CFR §300.30, Uncle, a relative of Student, can be considered an individual acting in the place of the natural parent during the time Student lived with him. The federal law requires that the person acting as a parent, be at least a relative, and the child must have lived with this individual. An alternative under the statute is an individual who is legally responsible for the child. Under federal law and regulations Uncle can be considered Student’s Parent for the period of time that Student lived with him, even if he did not have legal custody of Student. Under the Massachusetts regulations, Uncle was the “ person acting as a parent of the child ”. 603 CMR §28.02(15). However, without establishment of a legal guardianship or legal custody of Student, Uncle’s ability to act or be counted as a Parent ended when Student’s custody was placed with DSS. Uncle’s rights and responsibilities under the pertinent statute and regulations arose from his relationship to Student as a paternal uncle, Student’s presence in his home, and the absence of natural parents in the Commonwealth. In the absence of any legal document establishing further custodial rights, Uncle’s rights and responsibilities were extinguished when DSS took custody of Student in 2002. In essence, it is as though Uncle had died and the last residence in which he and Student were together as “parent and child” was Boston.

It is a well-established principle that for children in DSS custody, the regulations look at the location or residence of the biological parent(s) for purposes of educational responsibility. In its brief, Boston relied on City of Salem v. Bureau of Special Education Appeals , 444 Mass. 476, 483 (2005) in distinguishing Walker Home for Children v. Town of Franklin , 416 Mass. 291, 295 (1993) from the case at bar. Relying upon the Court’s reasoning in City of Salem , Boston stated “the Walker case is distinguishable and cannot be read to be instructive when a child is in DSS custody and lives at his out-of-district residential school.” City of Salem at 482. In the latter case, the Court stated “the child has no custodial parent because he is in DSS custody, and it is settled that the child’s residence cannot be based on the municipality in which he lives because he lives at a residential school.” City of Salem v. Bureau of Special Education Appeals , 444 Mass. 476, 483 (2005). Applying 603 CMR 28.10, the Court in City of Salem upheld the DOE assignment of LEA financial responsibility to the districts where that student’s parents lived.

Boston further argued that the fact that Student in the instant case never resided in Milton had no bearing on the result, as the issue is the district in which the parent, guardian, or person responsible for Student, resides. Uncle is not a natural parent or guardian of Student, and he ceased his responsibilities vis a vis Student in 2002, when he lost physical custody of Student. However, Student and Uncle last lived together in Boston, and since DSS cannot be deemed a “parent” for purpose of LEA assignment of responsibility, then Boston, as the last place in which Student resided with Uncle while in his care, is the responsible District until Student reached the age of majority, and established his own residence.

In its brief, DOE recognized that although 603 CMR §28.10(8)(c) does not describe the situation in the instant case, DOE exercised its discretion and assigned LEA responsibility based on what it understood to be reasonable under the circumstances. DOE concluded that Uncle was analogous to a parent and therefore, assigned responsibility to Milton since Uncle was residing there since 2005. Even when guided by its intention to be reasonable, DOE’s application of the regulations and analysis was flawed, incorrectly resulting in assigning Milton fiscal and programmatic responsibility for Student. The responsible district for the period between August 2005 and February 2006 is Boston.

LEA Assignment for the period between February 2006 and June 30, 2007:

Milton argues that Student turned 18 years old on February 28, 2006 and has at no time before or after his 18 th birthday been a resident of Milton. Since Student signed his most recent IEP, Milton can only assume that he does not have a legal guardian responsible for him and therefore, the district responsible for his education should be the district where Student resides, which is not Milton. Milton relies on 603 CMR 28.10(2)(b) in reaching this conclusion. It requests that to the extent the BSEA can find that Boston is the responsible party it do so, and if it cannot determine which is the responsible district, then the case should be remanded to the DOE for further investigation. Careful consideration of the evidence and the arguments presented, leads to the conclusion that Boston is the responsible party for the period between February 2006 and June 2007, as discussed below.

According to a statement written in ME-4, DSS fully funded Student’s placement at St. Vincent’s from February 16, 2006 onward. (ME-4) The date of Student’s departure from this program is not part of the record. Following placement, and seeking to enter into a cost-share agreement, DSS requested that DOE determine which LEA was responsible for the educational portion of Student’s programming. Student turned 18 years old on February 27, 2006. Custody of Student was not awarded to any individual, and no legal guardian was appointed. The day of his birthday, Student signed himself into a voluntary placement agreement with DSS. (BE-B) On March 8, 2006, DSS sought to enter into a cost-share agreement with Boston. (BE-B) Student’s Team met on March 28, 2006 and an IEP calling for a “day program as part of a DSS cost-share at St. Vincent’s School” was drafted. (ME-2) Student accepted the IEP in full on May 1, 2006. The aforementioned facts show that Student was living at St. Vincent’s and that at some point he began to receive special education services at that school. The record lacks sufficient information for me to ascertain whether Student had access to an educational program at St. Vincent’s in February 2006. On March 28, 2006, Boston convened Student’s Team and an out-of-district placement IEP was drafted. Therefore, after March 28, 2006, Student lived and received special education services at St. Vincent’s.

Some of the criteria in 603 CMR 28.10 (3)(b) are met as Student has an IEP requiring an out-of-district placement and is living in a residential school. However, the facts of this case present a quandary with respect to the part of the regulation that refers to a student’s parent. Implicit in this part of the regulation is the fact that Student has a parent or legal guardian residing in Massachusetts. Student has neither. Student’s father is deceased, and mother lives in Africa and has never been in Massachusetts. (ME-1; BE-B) Student came to Massachusetts with Uncle, who never had legal custody of Student and is not his legal guardian. (ME-1) Any custody Uncle may have had can only be described as “ de facto ” physical custody and this ended when Student was placed in DSS custody.

Pursuant to the representation made in BE-E, Student’s placement at St. Vincent by DSS occurred twelve days prior to his turning 18 years old. (BE-E) Under MGL c. 119 § 24, it is clear that DSS could not have “ custody ” of Student beyond his 18 th birthday, voluntary or otherwise11 , because the statute establishes the age of 18 as the outer limit. By operation of law, DSS’ custody ended on February 27, 2006, the day Student turned eighteen.

Nothing in the record shows that a legal guardian was appointed for Student after he turned eighteen, and there is nothing to indicate that he has relinquished his educational decision-making authority to any particular individual, beyond February 27, 2006. This conclusion is supported by several documents in the record such as the DSS Voluntary Placement Agreement, Student’s IEP of March 2006-March 2007 accepted on May 12, 2006, and Uncle’s affidavit.

Contrary to Boston’s assertion, Student did not enter into a voluntary custody agreement with DSS, but rather he entered into a voluntary placement agreement with DSS. From the time Student turned 18 forward, he received services from DSS as an adult or independent mature child who voluntarily requested assistance from that agency. DSS had Student enter into a Voluntary Placement Agreement12 in an attempt to continue to provide the services Student needed. DSS uses the Voluntary Placement Agreement Form, to provide substitute care when a Parent or a Parent substitute requests such care after it conducts an assessment of the needs of a child. 110 CMR 4.10

When children are placed in the care of the DSS, DSS’ own regulations provide at 110 CMR 7.402 (2) that

For children in the care of the Department, the Department shall not exercise special education parental rights unless there is specific language in the Voluntary Placement Agreement delegating special educational parental rights to the Department…

Review of the Voluntary Placement Agreement, BE-B, shows that no provision was made in section 8 (addressing educational advocacy) for Student to have a guardian with educational decision-making authority appointed for him. Specific language to the same effect would have appeared in section 8 pursuant to 110 CMR 7.402 (2) if Student, the Mature Child13 , were unable to make his own educational decisions. No such language is part of the agreement. Student’s signature appears in the space designated for the client Parent/Mature Child. Even though Ms. Fulcher, DSS social worker, signed in the space provided for Parent, her signature would have served to satisfy notice requirements of Student reaching the age of majority.14

Additionally, DSS’ regulations require the signature of the DSS Area Director or his/her designee, in order for DSS to be able to enter into cost-share IEPs, and cost- sharing agreements on behalf of a minor child. 110 CMR 7.402 (3). Student’s most recent IEP, ME-2, contains only Student’s signature. Therefore, whatever agreement there was between DSS and Boston, it is clear that Student signed the IEP after turning 18, as an adult/ independent mature child, not in the custody of DSS or any other adult. This is consistent with federal and state laws and regulations.

It is well established under federal and state special education law that all rights transfer to a student with a disability when he reaches the age of majority. The only exception is when that student is declared incompetent, which was not the case here.

20 U.S.C. § 1415 (m) addressing transfer of parental rights at the age of majority
states,

(1) In general

A State that receives amounts from a grant under this subchapter may provide that, when a child with a disability reaches the age of majority under State law (except for a child with a disability who has been determined to be incompetent under State law)–
(A) the agency shall provide any notice required by this section to both the individual and the parents;

(B) all other rights accorded to parents under this subchapter transfer to the child;

(C) the agency shall notify the individual and the parents of the transfer of rights; and

(D) all rights accorded to parents under this subchapter transfer to children who are incarcerated in an adult or juvenile Federal, State, or local correctional institution.

Consistent with the federal statute, federal regulations at 34 C.F.R. § 300.520 provide that
(a) General. A State may provide that, when a child with a disability reaches the age of majority under State law that applies to all children (except for a child with a disability who has been determined to be incompetent under State law)–

(1) (i) The public agency must provide any notice required by this part to both the child and the parents; and

(ii) All rights accorded to parents under Part B of the Act transfer to the child;

(2) All rights accorded to parents under Part B of the Act transfer to children who are incarcerated in an adult or juvenile, State or local correctional institution; and

(3) Whenever a State provides for the transfer of rights under this part pursuant to paragraph (a)(1) or (a)(2) of this section, the agency must notify the child and the parents of the transfer of rights.

(b) Special rule. A State must establish procedures for appointing the parent of a child with a disability, or, if the parent is not available, another appropriate individual, to represent the educational interests of the child throughout the period of the child’s eligibility under Part B of the Act if, under State law, a child who has reached the age of majority, but has not been determined to be incompetent, can be determined not to have the ability to provide informed consent with respect to the child’s educational program.

Since Student is over eighteen years old, the age of majority in Massachusetts, and since he was never declared incompetent and no guardian was ever appointed, the only reasonable conclusion is that he is an adult under federal and state law. As such, all rights transferred to him at the age of majority including his right to establish a residence. Milton is correct that Student’s reaching the age of majority is a fact material to the determination of Student’s residence and LEA responsibility.

Boston disputes Milton’s assertion that Student’s having reached the age of majority is significant to the resolution of this matter. In defense of this position, Boston argues that since G.L. c. 71B, §1 defines a school age child as “any person of ages three through twenty-one who has not attained a high school diploma or its equivalent”, and since Student has not attained his high school diploma, then the fact that he is over 18 is irrelevant as he is clearly covered under c. 71B, §1 as a school age child. Boston and DOE agree “the fact that Student has turned 18 has no bearing on the [LEA] determination.” I agree that the fact that Student is over 18 years of age does not in any manner impact upon Student’s right to continue to receive special education services (through age 21, or the day on which he receives a high school diploma, whichever comes first). However, entitlement to special education services is separate and distinct from the fact that he can be an adult for purposes of establishing a residence.

Unable to establish a residence because of his temporary placement in a residential school, Student was, in essence, an adult under federal and state law, who was essentially homeless at the time he turned eighteen years of age.15 As a homeless student, guidance as to the responsible district would be found under 603 CMR 28.10 (5)(b), for the period of time until he went to live in Fall River and established his residence there. (BE-H; ME-8)

603 CMR 28.10 (5) provides guidance with respect to responsibility of school districts for homeless students. This section emphatically states that the rights of homeless students shall not be limited in accordance with the McKinney-Vento Homeless Assistance Act, 42 U.S.C. § 11431 et seq.

1. Homeless students shall be entitled to either continue to attend their school of origin, as defined by McKinney-Vento, or attend school in the city or town where they temporarily reside. To the extent feasible, homeless students should remain in their school of origin unless doing so is contrary to the wishes of such student’s parent(s) or legal guardian or state agency with care or custody of the student.

2. The school district(s) that was programmatically and financially responsible prior to the student becoming homeless shall remain programmatically and financially responsible for a homeless student until the parent(s) or legal guardian or state agency with care or custody of the student chooses to enroll the student in the school district where the shelter or temporary residence is located. When a student whose IEP requires in-district services is enrolled in the school district where the student is temporarily residing, then that school district shall become programmatically and financially responsible upon enrollment. When a student whose IEP requires out-of-district services is enrolled in the school district where the student is temporarily residing, then that school district shall become programmatically responsible upon enrollment and the school district(s) that was financially responsible prior to the student becoming homeless shall remain financially responsible until the student is no longer homeless.

Pursuant to 603 CMR 28.10 (5)(b), one must look at the last district that was responsible for Student prior to his becoming homeless. That district is Boston.

While none of the parties was able to produce any document establishing legal custody of Student with Uncle, Student lived with Uncle in Boston until 2002 when this living situation was disrupted by DSS taking custody of Student. Since Student lived with Uncle for a period of time in Boston, it is reasonable to conclude that Uncle had “ de facto ” physical custody of Student. Uncle’s affidavit states that he never had legal custody of Student, and he was never appointed Student’s guardian. Uncle lost “ de facto ” physical custody of Student in 2002, while he resided in Boston. Since the only type of custody that can be established with Uncle is “ de facto ” it ended the moment Student stopped living with him. The record contains no information as to whether DSS ever sought appointment of a guardian ad litem , or other type of guardianship establishing educational decision-making16 that might have impacted upon an LEA assignment. Uncle’s Affidavit states that after 2002, he never again had any contact with Student and received no information about him. This only strengthens the position that any type of custody he may have had was temporary and was extinguished when Student was removed from his home. Any determination of LEA responsibility would not have run with Uncle, therefore transferring to Milton, because Uncle did not then fit the criteria of “parent” under federal and state law. Boston is however, the last known residence of Student and therefore, fiscal and programmatic responsibility for Student is with Boston. The fact that Boston convened Student’s Team meetings, drafted the IEPs in 2004-2005 and 2006-2007 serves as evidence of the fact that it had educational responsibility for Student. (ME-2; BE-G) Under M.G.L. c.71B §517 , Boston’s responsibility extends through June 30, 2007, since Student established his residence in Fall River on or about November 20, 2006.

ORDER:

1. DOE’s assignments issued on April 4, 2006, assigning Boston, and August 2, 2006 (reaffirmed in January 2007), assigning Milton, are inconsistent with the regulation relied upon by DOE ( 603 CMR 28.10 (3)(b)), and are therefore, vacated.

2. Boston has financial and programmatic responsibility for Student for the periods covering August 2005 to February 2006, and February 2006 through June 30, 2007.

So Ordered by the Hearing Officer,

_____________________________________

Rosa I. Figueroa

Dated: 4/30/2007

I would like to recognize legal intern Joe Presti’s efforts in assisting with this decision.


1

The DOE requested that the briefing schedule be amended due to it having received an incomplete set of documents from Milton. The missing exhibit (ME-1) was received by the DOE on March 28, 2007.


2

Ms. Monahan makes reference to an attached document, which was not submitted as part of this exhibit.


3

G.L. c.71B § 3 states that “the school committee of every city, town or school district shall identify the school age children residing therein who have special needs…and provide or arrange for the provision of such special education program….” See also 603 CMR 28.03 (4).


4

603 CMR 28.10 et seq.


5

603 CMR 28.10 (3) and (4) address school district responsibility based on residence of parent(s) or legal guardian, and shared financial and programmatic responsibility for students in living situations other than the ones described in 28.10 (2) or (3).


6

“[E]very person shall have a right to attend the public school of the town where he actually resides….”


7

Restatement (Second) of Conflicts of Laws § 11 comment a (1971). George H. and Irene L. Walker Home for Children, Inc. v. Town of Franklin , 416 Mass. 291, 296, 621 N.E. 2d 376 (1993).


8

If the above criteria is met, then, the school district where the parent(s) or legal guardian resides has financial and programmatic responsibility for the student.


9

The letter of assignment to Boston states “out-of-district placement” but relies on the 2004-2005 IEP which, as has been discussed, calls for placement at McKinley Technical. I find that the IEP cover sheet, BE-G, is the best evidence of the actual type of placement.


10

Authority: 20 U.S.C. 1401(23).


11

“ The divisions of the juvenile court department, upon the petition under oath of a person alleging on behalf of a child under the age of 18 [emphasis added] within the jurisdiction of the court that the child: (a) is without necessary and proper physical or educational care and discipline; (b) is growing up under conditions or circumstances damaging to the child’s sound character development; (c) lacks proper attention of the parent, guardian with care and custody or custodian; or (d) has a parent, guardian or custodian who is unwilling, incompetent or unavailable to provide any such care, discipline or attention, may issue a precept to bring the child before the court, shall issue a notice to the department and summonses to both parents of the child to show cause why the child should not be committed to the custody of the department or that any other appropriate order should not be made….” M.G.L. 119 § 24 .


12

“ The Department shall utilize a standard form of Voluntary Placement Agreement, as established by the Department. This Voluntary Placement Agreement shall automatically expire after six months, and must be re-executed if the voluntary placement is to be continued. All Voluntary Placement Agreements shall be approved by, and then signed by a departmental Area Director or Assistant Area Director or his/her designee. The Voluntary Placement Agreement is intended to be a flexible document adaptable to the individual needs and circumstances of the client or family—thus the standard form may be modified as appropriate, so long as any such modifications are in writing and are approved by both the client and the Department.” 110 CMR 4.11.


13

Throughout the contract, the Parties are identified as DSS and “Parent/Mature Child”. ( BE-B)


14

The record lacks information regarding the reasons why Ms. Fulcher signed this document in the space provided for Parent’s/s’ signature and there is no indication that she was ever appointed a legal guardian, surrogate parent or educational advocate for Student. Therefore, her signature is found to have no bearing on her standing as a person responsible for Student beyond Student’s 18-birthday. It is possible that up to Student reaching the age of majority, Ms. Fulcher, in her capacity as a DSS employee, may have been the person responsible for Student under DSS’ regulations. (See BE-B).


15

Had Student not been in residential placement when he turned eighteen, he would have been able to establish his own residence at that point under 603 28.10(2)(b). Said section provides in pertinent parts:
(2) School district responsibility based on student residence…

(b) When students are eighteen years of age or over and they have established their own residences as adults.


16

Appointment of a surrogate parent through the DOE, if one was sought, would have no impact for determination of LEA fiscal and programmatic responsibility.


17

“…Notwithstanding the provisions of section twenty-seven C of chapter twenty-nine or any other general or special law to the contrary, if a child with a 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; ….”. M.G.L. c. 71B §5.


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