Northampton and Greenfield Public Schools and Department of Elementary and Secondary Education – BSEA # 10-1393



<br /> Northampton and Greenfield Public Schools and Department of Elementary and Secondary Education – BSEA # 10-1393<br />

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

In Re: Northampton Public Schools v. Greenfield Public Schools and Department of Elementary and Secondary Education

BSEA # 10-1393

DECISION

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

Northampton Public Schools (Northampton) filed a Request for Hearing on August 19, 2009, appealing an LEA determination entered by the Department of Elementary and Secondary Education (DESE) assigning sole fiscal and programmatic responsibility for Student in the instant case to Northampton Public Schools.

During a telephone conference call on September 10, 2009, the Parties agreed to submit their respective arguments and responses by September 28, 2009 and to have the matter decided on submission of documents. Timelines for submission of Greenfield Public Schools’ (Greenfield) position and responses by Northampton and DESE were set as reflected in an Order issued on September 14, 2009. Consistent with the Order, Greenfield’s position was received on September 21, 2009, and Northampton’s response was received on September 28, 2009. DESE’s position was received on September 29, 2009.

The official record consists of the Northampton Public Schools’ documents marked as exhibits NE-1 through NE-3. The record closed on Tuesday September 29, 2009, upon receipt of DESE’s position statement.

ISSUE:

1. Whether DESE’s July 31, 2009, determination that Northampton was fiscally and programmatically responsible for Student in the above- referenced matter was correct. If not,

2. Whether DESE’s determination should be reversed and Greenfield n Public Schools held fiscally and programmatically responsible for Student’s residential placement.

POSITION OF THE PARTIES:

Northampton’s Position:

Northampton disputes the assignment of educational responsibility issued by DESE in July 2009 asserting that the central question is the location of Mother’s residence prior to her incarceration; that is, whether she lived in Greenfield but was considered homeless for purposes of 603 CMR 28.10 addressing fiscal and programmatic responsibility for eligible students in MA. Northampton believes that DESE relied on 603 CMR 28.10(5), the regulation addressing responsibility for homeless students, in reaching its determination of July 31, 2009. Northampton argues that DESE failed to consider the ramifications of the move-in law in making its determination, regardless of whether Mother resided in Greenfield or was there under a homeless status prior to her incarceration.

Believing that it was only financially responsible for Student through June 2009, Northampton did not budget for Student’s ongoing placement for the 2009-2010 school year. It argues that DESE’s determination of ongoing financial responsibility does exactly what the move-in law is designed to prevent; “blind sighting a school district of fiscal responsibility for an out of district placement after it has completed its budget for that year.” Northampton argues that pursuant to DESE’s earlier determination, as of February 26, 2009 Greenfield would have budgeted for Student’s residential placement tuition for the 2009-2010 school year, whereas Northampton would have not. As such, Northampton seeks reversal of DESE’s July 31, 2009 LEA assignment and seeks for Greenfield to be ordered to assume financial and programmatic responsibility for Student for the 2009-2010 school year in accordance with M.G.L. c. 71B§5.

Lastly, consistent with 603 CMR 28.10 (9)(b)(1), Northampton asserts that its Hearing Request is based solely on the information provided to DESE under 603 CMR 28.10 (8)(b) and 603 CMR 28.10 (8)(f).

Greenfield’s Position:

According to Greenfield, the undisputed facts and applicable law support DESE’s conclusions that Northampton bears full responsibility for Student because Mother was a homeless individual who was staying with her sister in Greenfield prior to her incarceration. Since prior to becoming homeless she lived in Northampton, also the district where Student resided before he was placed at the residential school, Northampton, not Greenfield is responsible. As such, Greenfield supports DESE’s LEA assignment of July 2009.

DESE’s Position:

DESE stands by its determination that Northampton is responsible for Student’s residential placement based on Parent’s status as a homeless individual while staying in Greenfield prior to incarceration, and given that her last known residence was in Northampton. It asserts that the move-in law is inapplicable here because there was no move by Mother to Greenfield. DESE states that when it issued the July 2009 letter it simply corrected the February 2009 determination which had been based on erroneous facts.

FINDINGS OF FACT

· Student is an eight-year old child attending the McAuley Nazareth Home for Boys in Leicester, MA, as a residential student. Student was first placed at said school by the Department of Children and Families (DCF) on January 9, 2008 (NE-1).

· Mother resided in Northampton until June 2006 when she was incarcerated. She remained in jail until June 2008. Prior to Mother’s incarceration in 2006, Student resided with her in Northampton and attended the Jackson Street School (NE-2; Greenfield’s brief).

· In late 2006-2007 the Department of Children and Families (DCF) was awarded temporary custody of Student pursuant to a Care and Protection proceeding.

· Following a lengthy hospitalization, Student was placed by DCF at McAuley Nazareth in January 2008, pursuant to an Individualized Education Plan (IEP) developed by Northampton.

· Upon information and belief, Mother was criminally charged after having threatened to abduct Student, murder the judge, and blow up DCF. She was released on bail “on a very short leash.” Consistent with her conditions of bail, in June 2008, Mother stayed with her sister in Greenfield for approximately three to four weeks, allegedly sleeping on the couch (Greenfield’s brief). On or about July 1, 2008 Mother was incarcerated. At present, Mother continues her incarceration (NE-1; NE-2).

· There is no information regarding the whereabouts of Student’s father, who presumably lives out of state (NE-2).

· On February 20, 2009, on information and belief that Mother resided in Greenfield prior to incarceration, DESE assigned programmatic responsibility for Student to Greenfield and financial responsibility to Northampton through June 30, 2009 pursuant to G.L. c. 71B §5, known as the “move-in law” (NE-2). DESE reached this determination relying on 603 CMR 28.10(3), and based on its belief that Mother whose child attended an out of district placement, resided in Greenfield. Because Mother had previously lived in Northampton through June 2006, when she was incarcerated, and Northampton had drafted the IEP for Student’s out of district placement, DESE applied the move-in law and concluded that Northampton was financially responsible for Student’s placement until June 30, 2009. Thereafter, Greenfield would assume fiscal responsibility for Student as of July 1, 2009 pursuant to the move-in law (NE-2).

· Northampton assumed financial responsibility for Student though June 30, 2009.

· On April 13, 2009, Northampton wrote to Greenfield making it clear that Greenfield was responsible for Student after June 30, 2009 and asking Greenfield to register Student in Greenfield (NE-3).

· Based on new information provided by DCF that Mother was homeless during the time that she stayed with her sister in Greenfield, on July 31, 2009, DESE corrected the previous assignment of responsibility. This time, DESE assigned programmatic and financial responsibility for Student to Northampton

Because the student’s mother resided at 491 Bridge Road in Northampton until she became homeless just prior to her incarceration, Northampton is programmatically ad fiscally responsible for Student (NE-1).

· Northampton received the new LEA assignment on August 11, 2009. The new determination explained that DCF had informed DESE that Mother was homeless while she lived in Greenfield. Therefore, Northampton was fully responsible for Student (NE-1). In its letter DESE advised Northampton of its right to appeal DESE’s assignment within 60 days of its notification. ( Id. )

· On August 19, 2009, Northampton filed a Hearing Request with the BSEA appealing DESE’s determination of July 31, 2009.

· Northampton drafted an IEP covering the period form September 2009 to September 2010 for Student’s residential placement at McAuley Nazareth (Greenfield’s brief).

CONCLUSIONS OF LAW

The Massachusetts Special Education Regulations gives the Department of Elementary and Secondary Education authority to resolve issues regarding residency and LEA responsibility for special education students. 603 CMR 28.10. Under 603 CMR 28.10 (9), the Regulations further grant the Bureau of Special Education Appeals authority to decide subsequent appeals of those determinations. While the facts in the case at bar are not in dispute, Northampton, disagrees with DESE’s legal determination, arguing that DESE disregarded the move-in law, and imposed ongoing financial responsibility for Student in Northampton beyond June 30, 2009. It is this issue which is before me.

In Massachusetts, school age children have a right to attend public school in the town where the child resides. M.G.L. c. 76 §5. Specifically addressing school age children with special education needs, M.G.L. c. 71B §3, charges each district with the responsibility of identifying eligible children within their districts. Further guidance addressing a district’s financial and programmatic responsibility for eligible students is provided through the Massachusetts Special Education Regulations. Generally, 603 CMR 28.10(3) provides that a school district’s fiscal and or programmatic responsibility for a student is based on the residence of the parent(s) or legal guardian. Subsection b of the same regulation addresses responsibility for students in out of district residential placements. This section of the regulations states that

The school district where the parent(s) or legal guardian resides shall have both programmatic and financial responsibility under the following circumstances:

1. when student is in a pediatric nursing home.

2. when a student whose IEP requires an out of district placement lives and receives special education services at a special education residential school.

3. when a student lives and receives educational services in a residential facility (other than a group home or a residential school) operated by or, through contract, authorized by the Department of Mental Health, the Department of Public Health, the Department of Youth Services, or the Department of Correction or County House of Correction.

Applying the above regulation, and mindful of the move-in law, DESE initially assigned educational responsibility for Student to both Northampton and Greenfield for the 2009-2010 school year in February 2009 (NE-2).

Pursuant to G.L. c. 71B§5, the statute addressing the move-in law provides that,

If a child with a disability for whom a school committed currently provides or arranges for the provision of special education in an approved private day or residential school placement … or his parent or guardian moves to a different school district on or after July 1of any fiscal year, such school committee of the former community of residence shall pay the approved budgeted costs, of such day or residential placement … for the balance of such fiscal year.

Relying on the move-in law, Northampton argues that as of February 26, 2009, Greenfield was on notice that it would be programmatically and fiscally responsible for Student as of July 1, 2009 (NE-2). As such, Greenfield would have budgeted for Student’s residential tuition for the 2009-2010 school year, whereas Northampton would have not. In essence, Northampton attempts to make a case for detrimental reliance.

The parties are correct that the question here centers on whether Mother had established her residence in Greenfield prior to incarceration or whether she was considered homeless for purpose of 603 CMR 28.10. If the evidence shows that Mother had established residence in Greenfield, then the move-in law applies to the determination of which school district is responsible for the 2009-2010 school year. If however, the evidence shows that Mother was homeless after leaving Northampton, then McKinney-Vento and 603 CMR 28.10.(5) apply.

Pursuant to the McKinney-Vento statute, applicable in Massachusetts, a homeless individual is one who lacks a fixed residence; that is a residence that is permanent, fixed or stationary. Greenfield argues that the three to four weeks during which Mother stayed at her sister’s apartment in Greenfield and during which she slept on the couch, does not qualify as a fixed residence because it was not permanent.

If, as Greenfield argues, Mother was homeless at the time of her incarceration then 603 CMR 28.10(5) addressing assignment of responsibility for homeless students, would apply. Said regulation states:
(5) Responsibility for Homeless Students . Nothing in 603 CMR 28.00 shall limit the educational rights of homeless students and parents afforded under the McKinney-Vento Homeless Assistance Act, 42 U.S.C. §1143 et seq. (McKinney-Vento). The following provisions apply to these students.

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.

The regulation above states a clear preference for keeping responsibility for a homeless student with the district responsible for that student prior to the student becoming homeless. See also, McKinney-Vento, 42 U.S.C. 11431, Part C, Subpart B, Sec. 722 (3)(B)(A)(i)). This presumption is overcome if and when a parent, legal guardian, or state agency with care or custody of the particular student chooses to enroll him/her in the school district where temporary residence is located. 603 CMR 28.10(5)(b). In the instant case the facts are undisputed, that Mother lived in Northampton prior to becoming homeless and staying with her sister in Greenfield. In the absence of a showing by Northampton that Mother’s stay with her sister did not constitute a temporary situation, and was intended to establish residence, one can only conclude that mother and Student became homeless when Mother left Northampton. Furthermore, nothing in the record suggests that at any time thereafter, Mother, or DCF wished for Student’s residence to change as contemplated under McKinney-Vento. Thus, application of the Massachusetts Special Education Regulations regarding school district responsibility to the facts herein can only result in a finding of programmatic and financial responsibility in Northampton, consistent with DESE’s assignment of responsibility dated July 31, 2009.

This brings us to the question of what impact if any M.G.L. c. 71B §5, the move-in law1 , have on the facts and regulations stated above. Northampton contends that since it did not budget for Student’s residential placement for the 2009-2010 school year and Greenfield did, Greenfield should be responsible under the move-in law, consistent with DESE’s determination of February 2009. Greenfield argues that the move-in law should have no impact here because neither Mother nor Student “moved to a different school district or established a new community of residence” while Mother stayed in Greenfield.

In order for the move-in law to impact the result of this case, Northampton as the moving party, must show that Mother established residence in Greenfield during the month she lived there prior to incarceration or that Student had moved to a different district.

As explained in Fall River v. Department of Education and Franklin Public Schools , 12 MSER 123, 127 (May 15, 2006),

MGL c. 76 §5 assures an individual’s right to attend the public school of the town where that individual resides2 . 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 home3 . 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.

Residence in this context implies that it is the place where the individual settles, where s/he intends on staying “to dwell permanently and continuously” for a period of time. See Black’s Law Dictionary , Sixth Edition, St. Paul, MINN., West Publishing Co., 1990, defining residence and quoting State ex rel. Bowden v. Jensen , Mo. 359 S.W. 2d. 343, 349. While the facts are undisputed that Mother stayed at her sister’s house in Greenfield for approximately one month, Northampton presented nothing to show that Mother had actually established residence in Greenfield and that she intended on dwelling with her sister for a period of time as her legal, permanent home, or that Student had moved to a different district during the relevant period. In the absence of any showing regarding a move by Mother or Student, a reasonable person can only conclude that Mother was homeless and simply found a place to stay at her sister’s house prior to incarceration. The facts support a finding that Mother’s only known residence at the time Student was placed at McAuley Nazareth, and prior to incarceration was Northampton. As such, the move-in law becomes irrelevant for purposes of an LEA assignment of educational responsibility in this matter.

Lastly, 603 CMR 28.10.8(c)6 addresses determination of Mother’s residence during incarceration.

If the student’s parent(s) or legal guardian resides in an institutional setting in Massachusetts, including, but not limited to, a correctional facility, a hospital, a nursing home or hospice, or a mental health facility, a halfway house, a pre-release center or a treatment facility, the school district where the parent(s) or legal guardian lived prior to entering the institutional setting shall be responsible.

Application of the aforementioned section of the Regulations to the facts in the case at bar also result in a finding that Northampton is the responsible district as correctly argued by DESE. As such, consistent with DESE’s determination of July 31, 2009, programmatic and fiscal responsibility for Student’s residential placement lies with Northampton.

ORDER:

1. Northampton is financially and programmatically responsible for Student’s residential placement at McAuley Nazareth for the 2009-2010 school year.

So Ordered by the Hearing Officer,

_____________________________________

Rosa I. Figueroa

Dated : October 22, 2009

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

EFFECT OF BUREAU DECISION AND RIGHTS OF APPEAL

Effect of the Decision

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

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

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

Compliance

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

Rights of Appeal

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

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

Confidentiality

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

Record of the Hearing

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

October 22, 2009

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

NORTHAMPTON PUBLIC SCHOOLS

BSEA # 10-1393

BEFORE

ROSA I. FIGUEROA

HEARING OFFICER

ALISIA ST. FLORIAN, ATTORNEY FOR NORTHAMPTON PUBLIC SCHOOLS

PETER L. SMITH, ATTORNEY FOR GREENFIELD

PUBLIC SCHOOLS

DEBRA COMFORT, ATTORNEY FOR THE DEPARTMENT OF ELMENTARY AND SECONDARY EDUCATION


1

“… Notwithstanding the provisions of section 27C of chapter 29 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 tot the provisions of section 3, or his parent or guardian moves to a different school district on or after July 1 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; provided however that if such move occurs between April 1 and June 30, such school committee of the former community of residence shall pay such costs for the balance of the fiscal year in which the move occurred as well as for the subsequent fiscal year. The school committee of the new community of residence shall assume all responsibilities for reviewing the child’s progress, monitoring the effectiveness of the placement, and reevaluating the child’s needs from the date of new residence; provided, however, that during the period when the financial obligation of the former community of residence for such day or residential placement continues pursuant to this section, the school committee of such new community of residence shall provide the school committee of the former community of residence with notice of any such review, monitoring, and reevaluation, and an opportunity to participate; an d provided, further, that the school committee of such new community of residence shall be financially responsive for any increase, and the obligation of the school committee of such former community of residence shall be reduced by any decrease, in costs of such day or residential placement during such period which results from any such review, monitoring or reevaluation. A school committee which incurs costs or obligations under the provision of this section shall include within its annual budget an amount of money to comply with said provisions… ”. M.G.L. c. 71B §5.


2

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


3

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).


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