COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Nashoba Regional School District BSEA # 08-6594
RULING RE JOINDER OF MASSACHUSETTS DEPARTMENT OF CHILDREN AND FAMILIES
Introduction
On August 12, 2008, Student’s attorney filed with the Bureau of Special Education Appeals (BSEA) a motion to join the Massachusetts Department of Children and Families (DCF).
On August 21, 2008, DCF filed an opposition, and on September 17, 2008 a telephonic hearing was held on the motion.
Facts
Student, who is fifteen years old, resides at the Robert F. Kennedy Children’s Action Corp. (RFK) through placement and funding by DCF. Her primary disability, as a result of which she qualifies for special education services, is an emotional disability. More specifically, Student has been diagnosed with reactive attachment disorder, for which Student has been receiving therapy. Student is presently in the voluntary care of DCF.
This fall, Student transitioned from middle school into the Nashoba Regional High School, where she attends a therapeutic school program.
Legal Framework
The issue before me is whether DCF should be joined as a necessary party. Pursuant to BSEA Hearing Rule 1J, joinder may be ordered upon a finding that (1) complete relief cannot be granted among the existing parties, or (2) the proposed party to be joined has an interest in this matter and is so situated that the dispute cannot be disposed of in its absence. Pursuant to Rule 1J, factors to be considered in determining whether to join a party are (1) the risk of prejudice to the present parties in the absence of the proposed party; (2) the range of alternatives for fashioning relief; (3) the inadequacy of a judgment entered in the proposed party’s absence; and (4) the existence of an alternative forum to resolve the issues.
I further note that statutory language regarding the jurisdiction of a BSEA Hearing Officer over state agencies (including DCF) provides, in part, as follows:
The [BSEA] hearing officer may determine, in accordance with the rules, regulations and policies of the respective agencies, that services shall be provided by the department of social services [now called the department of children and families], the department of mental retardation, the department of mental health, the department of public health, or any other state agency or program, in addition to the program and related services to be provided by the school committee.1
The phrase “in addition to” within this statutory language has been interpreted by BSEA Hearing Officers to mean that if a student’s needs can be met through the special education and related services which are the responsibility of the school district, complete relief can be granted without the need for the human service agency to become a party and joinder is not warranted, at least for the purpose of requiring the agency to provide services. This maintains the school district as the entity with sole responsibility for all those services to which the student is entitled pursuant to state and federal special education law.
However, if additional services from a human services agency (over and above those services that are the responsibility of the school district) may be necessary to ensure that the student will be able to access or benefit from the school district’s special education program and services, then joinder of the state agency may be appropriate, so that the BSEA may then consider what, if any, additional services should be ordered.2
Discussion
Student seeks placement at a residential program where she would receive both her educational services and her residential services. Student seeks joint funding of this program by Nashoba and DCF or, in the alternative, sole funding of the program by Nashoba.
BSEA may need to order DCF to provide services in addition to the special education and related services that are the responsibility of Nashoba. Pursuant to the above-quoted statutory authority, this may be justified in the event that DCF services are necessary to ensure that Student will be able to access or benefit from Nashoba’s special education program and services.
At this juncture, it is not possible to determine the likelihood that particular, additional services from DCF may and should be ordered under this standard. But, I am persuaded that this issue should be addressed as part of Student’s claims against Nashoba. This can only be accomplished by having DCF joined as a party to these proceedings. Also, as a party to the BSEA evidentiary hearing, DCF will likely provide evidence that is relevant and necessary to the BSEA’s resolution of some or all aspects of this dispute.
There would likely be insufficient reason to join DCF if DCF were to agree to voluntarily provide the particular residential services proposed by Student. However, Student is not seeking residential services at RFK, where DCF is presently funding Student’s residential services. In addition, DCF has made clear the possibility that it may seek to relocate Student. Relying upon Matter of McKnight , 406 Mass. 787, 798 (1990), DCF argues that it has the right to decide, in its discretion, which particular provider will deliver the DCF-funded service to a student.
Subsequent to McKnight , the Massachusetts Supreme Court explained that there may be factual and legal contexts in which the general rule does not apply. For example, in Care and Protection of Isaac , 419 Mass. 602, 606-607, 646 N.E.2d 1034 (1995), the Court addressed this question as follows:
The “traditional rule” to which the department refers was set out in Matter of McKnight, 406 Mass. 787, 792, 550 N.E.2d 856 (1990), as follows: “A court, of course, may not properly exercise the functions of the executive branch of State government.” See Guardianship of Anthony, 402 Mass. 723, 727, [524 N.E.2d 1361] (1988). On the other hand, a court has the right to order the department to do what it has a legal obligation to do. Id. Attorney Gen. v. Sheriff of Suffolk County, 394 Mass. 624, 629-630 [477 N.E.2d 361] (1985). Where the means of fulfilling that obligation is within the discretion of a public agency, the courts normally have no right to tell that agency how to fulfil its obligation. Id. at 630 [477 N.E.2d 361] See Bradley v. Commissioner of Mental Health, 386 Mass. 363, 365 [436 N.E.2d 135] (1982). Only when, at the time a judicial order is entered, there is but one way in which that obligation may properly be fulfilled, is a judge warranted in telling a public agency precisely how it must fulfil its legal obligation.
Case law has not addressed the extent of the BSEA’s authority to order DCF to provide services at a particular placement pursuant to BSEA’s statutory authority (MGL c. 71B, s. 3). However, BSEA decisions have routinely ordered school districts to provide or fund specific educational placements, and these decisions have been upheld by the courts.3 One might arguably conclude within the context of a particular special education dispute that MGL c. 71B, s. 3 similarly allows the BSEA to find that additional services from a state agency such as DCF must be provided at a specific placement.
Accordingly, I am not persuaded at this juncture that were I to order DCF to provide additional services, DCF would necessarily be given the discretion to choose the specific service provider, particularly if I were to conclude that the services to be provided by Nashoba and the services to be provided by DCF should be from the same service provider in order for Student to receive a free appropriate public education, or in order for Student to access or benefit from her education.
For these reasons, I conclude that DCF needs to be a party to this dispute for the purpose of my determining what, if any, additional services from DCF are required and whether those services, if any, should be provided at a specific placement. Joinder therefore is warranted under BSEA Hearing Rule 1J.
Order
Student’s motion to join the Massachusetts Department of Children and Families is ALLOWED .
By the Hearing Officer,
_________________
William Crane
Date: September 19, 2008
1
MGL c. 71B, s. 3. See also 603 CMR 28.08(3) (regulatory language similar to above-quoted statutory language).
2
E.g., In Re: Nashoba Public Schools , BSEA # 07-2412, 13 MSER 40 (SEA MA 2007); In Re: Gloucester Public Schools , BSEA # 04-3543, 10 MSER 389 (SEA MA 2004); In Re: Nashoba Public Schools , BSEA # 02-4839, 8 MSER 326 (SEA MA 2002); In Re: Ipswich Public Schools , BSEA # 02-4324, 8 MSER 185 (SEA MA 2002) and other rulings cited therein.
3
E.g., Mohawk Trail Regional School Dist. v. Shaun D. ex rel. Linda D . , 35 F.Supp.2d 34 , ( D.Mass. 1999) ( affirming BSEA Hearing Officer’s determination that school district was responsible for student’s placement at Whitney Academy); In Re: Southwick-Tolland Regional School District , BSEA # 06-6583, 12 MSER 279 (SEA MA 2006) (ordering student’s placement at the White Oak School), aff’d CA No. 07-30010-MAP (D.Mass. 2008) (unpublished); In Re: Manchester-Essex Regional School Dist. School Committee , BSEA # 04-5309, 11 MSER 62 (SEA MA 2005); (ordering school district to send student to the Active Healing program for purposes of evaluation), rev’d on other grounds, 490 F.Supp.2d 49 ( D.Mass. 2007) ; In Re: Lunenburg Public Schools , BSEA # 05-0799, 10 MSER 518 (SEA MA 2004) (ordering residential placement of student at the Franklin Perkins School), aff’d CA No. 04-12695-NMG (D.Mass. 2007) (unpublished); In Re: Southwick-Tolland Regional School District , BSEA # 06-6583, 12 MSER 279 (SEA MA 2006) (ordering student’s placement at the White Oak School), aff’d CA No. 07-30010-MAP (D.Mass. 2008) (unpublished).