Northampton Public SChools v. Massachusetts Department of Mental Health and Massachusetts Department of Mental Retardation – BSEA # 09-3451



<br /> Northampton Public SChools v. Massachusetts Department of Mental Health and Massachusetts Department of Mental Retardation – BSEA # 09-3451<br />

COMMIONWEALTH OF MASSACHUSETTS

SPECIAL EDUCATION APPEALS

In Re : Northampton Public Schools v. Massachusetts Department of Mental Health & Massachusetts Department of Mental Retardation

BSEA # 09-3451

Ruling on Northampton Public Schools’ Motion for Stay-Put Order

On January 22, 2009 Northampton filed a Motion for Stay-Put Order.1 Northampton states that DMH discontinued funding of the residential part of Student’s placement at Maple Valley School, causing Student’s entire placement to be in jeopardy. According to Northampton, Student is not safe to return home and termination of his current placement would deny him a Free Appropriate Public Education (FAPE) because he cannot access his educational placement without residing at the school. On January 21, 2009, Maple Valley notified the parties that it would be forced to plan Student’s discharge in February 2009. Since DMH has been funding the residential portion of the placement, Northampton requests that DMH be ordered to continue funding this placement. Northampton makes no argument in its Motion that DMR is in any way responsible for the residential portion of Student’s placement during the stay-put period. As such, this issue need not be addressed.

DMH filed its Opposition to Northampton’s Motion on January 27, 2009. In it, DMH states that it agreed to fund the residential portion of Student’s placement because Northampton claimed that it did not have money in its budget to be the sole source of funding for Student’s placement. According to DMH, once a student is found eligible for DMR services (as Student was found in the case at bar in October 2008), DMH is categorically excluded from consideration of eligibility for Adult DMH services, or for continuing Child/Adolescent services. As a result, pursuant to re-determination by DMH on January 5, 2009, he was found to be ineligible to receive DMH services. DMH states that the fact that it funded Student’s placement in the past is insufficient to continue to hold it responsible into the future especially where correspondence was forwarded stating DMH’s intentions to stop funding once Student attained the age of 19, given his DMR status. DMH argues that Student’s IEP mentions in several places that his placement is for educational reasons, a responsibility that lies with school districts, and that is inconsistent with the mission of DMH.

Relying on a recent BSEA Ruling, DMH further states that the stay-put provisions of the IDEA do not apply to DMH as neither statutes, regulations, interagency agreements nor policies of said agency render it an LEA for purposes of “stay-put” because none mention education as one of the missions of DMH. See Ruling on Plymouth Public School’s Motion for Partial Summary Decision , BSEA #08-2723 (Berman, July 28, 2008). To the contrary, it is DMH’s position that the LEA is ultimately responsible to provide the programs and related services necessary for eligible students to receive a FAPE. Asserting that Student’s needs are based on mental illness or emotional needs is insufficient to divert the LEA’s responsibility, according to DMH, as emotional needs are among the qualifying disabilities entitling students to special education. See 603 CMR 28.05(d)2. Similarly, DMH states that residential schools are among the placement options available to eligible students in Massachusetts. See, Abrahamson v. Hershman , 701 F.2d 273 (1983); 603 CMR 28.06. The Hearing Officer may only order DMH to provide those services that fall within the policies, rules and regulations of DMH in addition to the special education and related services to be provided by the school department. 603 CMR 28.08(3). DMH asserts that at minimum, the BSEA is required to “determine what program or services the school system is required to provide, before it can then determine whether there are additional services the student needs from another agency.” Accordingly, it argues that Northampton’s motion for stay-put should be denied because Northampton has not shown that DMH should be subject to the stay-put provisions of the IDEA.

Facts :

1. Born on January 4, 1990, Student is nineteen years old. (DMHE-1; SE-2).

2. He has been diagnosed with Pervasive Developmental Disorder, NOS; Dysthemic Disorder; ADHD; Anxiety Disorder, NOS; Rule out Psychotic Disorder, NOS; Enuresis; Exhibitionism; and Expressive Language Disorder. (SE-1).

3. Student has been placed residentially since the age of nine, pursuant to cost share agreements between Northampton and DMH. Northampton has funded the day portion of Student’s residential placement and DMH has funded the residential portion.

4. Student is currently residentially placed at Maple Valley School receiving the day portion of his services at Lake Grove at Maple Valley School. He started at this placement in 2005. (DMHE-1; SE-2).

5. Student’s Team met on March 4, 2008 to develop his IEP for the period from March 2008- March 2009. The IEP calls for residential placement and extended school year programming. Under present levels of educational performance, Student’s IEP states that his “social emotional and behavioral needs require a highly structured therapeutic setting to make adequate educational progress.” The placement consent form states that Student requires a twenty-four-hour educational program and the box calling for residential school is checked. (DMHE-1; SE-2). Under the section calling for Other Authority Required Placements (Non-Educational), it states that “the placement has been made by a state agency to an institutionalized setting for non-educational reasons.” No agency is named in this section. ( Id. ).

6. Parent accepted this IEP’s program and placement in full on April 27, 2008. Parent pursued a guardianship of Student given that he turned 18 years of age in January 2008. ( Id. )

7. On March 20, 2008, Student was found eligible to receive services through DMR. He also became eligible to receive DMR Adult services in October 2008. (DMHE-2).

8. In March 2008 DMH began communicating with Northampton to inform Northampton that given Student’s eligibility to receive DMR services, DMH would cease offering services.

9. On July 25, 2008, DMH wrote to Craig Jurgensen, Special Education Director in Northampton, regarding a transfer of Student from the Stetson School to Lake Grove at Maple Valley and the daily rate as well as the cost share between Northampton and DMH. (SE-7). The letter further references statements by Mr. Jurgensen that because Northampton’s budget had already been submitted, it could not solely fund Student’s residential placement. DMH requested that Northampton consider a sole-source contract for the following fiscal year. (SE-7).

10. On September 23, 2008, Mr. Jurgensen wrote to Lake Grove Maple Valley informing the school that DMH would discontinue funding the residential portion of Student’s placement in January 2009. (SE-4). Northampton stated its position that it would not accept responsibility for funding Student’s placement fully.

11. On September 17, 2008, DMH informed Northampton that it would no longer fund the residential portion of Student’s placement when he turned 19 years of age because at that time Student would be considered an adult for purposes of DMH eligibility. The letter addressed to Mr. Jurgensen and Ms. Kolodziey, relates DMH’s understanding that Northampton “will assume the full cost of [Student’s] out of district placement as of that date, unless another source of funding is identified.” It also confirms DMH’s understanding that Student had become eligible to receive DMR services. (DMHE-2; SE-3).

12. DMH again wrote to Northampton on November 20, 2008, to follow-up on conversations that had been taking place between Northampton and DMH regarding DMH’s understanding that it was not the appropriate agency to fund Student’s residential placement given that he presented with mental retardation and that Northampton would agree to be the sole source for funding Student’s residential placement. (DMHE-3; SE-6).

13. Estelle Bonaceto, Clinical Case Manager at Maple Valley, wrote to Mr. Jurgensen on November 20, 2008, conveying her concern regarding Northampton’s and DMH’s notice that neither would fund Student’s residential placement beyond January 4, 2009. She further expressed her concern that discharging Student would be premature given his “ongoing significant behavioral and emotional issues which required 24 hour supervision and intensive staff support.” (SE-1; SE-5). She suggested that an emergency IDT meeting take place and offered Maple Valley’s availability in December 2008. (SE-5).

14. On December 4, 2008, Northampton requested a hearing with the Bureau of Special Education Appeals seeking a finding that DMH, or in the alternative DMR, was responsible for the residential portion of Student’s placement alleging that said portion was necessary for non-educational reasons.

Stay-Put :

Under state and federal special education law, during the pendency of any proceeding before the BSEA, the student is entitled to remain in his or her then current educational program and placement unless the parents and the school district agree otherwise. 20 USC §1415(j); 34 CFR 300.518(a); G.L. c.71B §3; 603 CMR 28.08(7).2

Under the aforementioned statutes and regulation, Student is entitled to remain in his current educational placement until this dispute is resolved.3 A student’s placement is predicated upon his IEP. Student is currently placed at Lake Grove at Maple Valley under an accepted IEP which calls for residential placement.

Northampton argues that Student’s stay-put includes the residential portion of his placement which is funded by DMH. In turn DMH asserts that since Student aged out of its program, Northampton is responsible to fund the day and residential portions of Student’s placement under stay-put.

In order for DMH to be found responsible to provide services that can be characterized as special education or related services, subject to the provisions of the IDEA4 , an agreement must exist between the agencies setting the terms of said agreement5 and it must delineate the method for defining the financial responsibility of the agency.

Review of the non-participation justification section of the IEP states that Student’s “social/ emotional and behavioral needs require a therapeutic, residential setting in order to make adequate educational progress.” (SE-2). There is no dispute between Parent and Northampton regarding Student’s needs, educational program or placement, and no agreement to alter the current placement delineated in the IEP exists between them. As such, Student’s stay-put placement is the residential placement at Maple Valley pursuant to his March 2008 accepted IEP. (SE-2; DMHE-1)

The IEP does not specifically reference a cost-share agreement between DMH and Northampton, nor does a signatory from DMH appear anywhere in the plan. In the Placement Consent Form, under Other Authority Required Placements (Non-Educational), the name of the responsible agency should be provided if one is involved. This section states in pertinent part “the placement has been made by a state agency to an institutionalized setting for non-educational reasons” but no agency is named. (SE-2; DMHE-1) Nothing in the record suggests that the IEP was not the result of a properly convened Team meeting. The Parties also do not dispute that the IEP was promulgated by Northampton as a result of the Team meeting in March 2008.

I find that for purposes of stay-put there is insufficient evidence at this juncture to ascertain what, if any, responsibility DMH has to continue funding the residential portion of Student’s placement beyond the alleged period of entitlement under DMH’s regulations. I note that the actual cost-share agreement between the parties, assuming one exists, was not available for review. Northampton has produced absolutely nothing to show that there was an agreement by DMH to fund Student’s residential placement through March 2009. Therefore, the fact that DMH funded Student’s residential placement through January 2009 when Student turned nineteen years of age, is insufficient to assert that DMH has stay-put responsibility for Student. Since the IEP promulgated by Northampton calls for residential placement and Parent accepted this IEP, Student is entitled to remain at Maple Valley as a residential student during the pendency of this proceeding and Northampton is responsible for said placement. Should Northampton prove its case at hearing, it is entitled to reimbursement from DMH.6

Orders:

1. Northampton’s Motion for Stay-Put Order requiring DMH to continue to pay the residential portion of Student’s placement is DENIED.

2. Northampton is responsible to fund Student’s residential placement at Maple Valley through the pendency of this proceeding unless the parties agree otherwise. Northampton’s right to reimbursement from DMH or DMR or both depending on the evidence presented at hearing, is preserved.

So Ordered by the Hearing Officer,

_____________________________________

Rosa I. Figueroa

Dated: February 9, 2009


1

Two separate motions regarding dismissal of DMH and DMR as parties in the above-referenced matter, requested earlier, are pending as DMR and DMH have requested the opportunity to present oral arguments. At their request, the motions are scheduled to be heard on March 3, 2009.


2

Exceptions to stay-put which relate to violations to the code of conduct are not applicable in this matter.


3

See Verhoven v. Brunswick School Committee , 207 F. 3d 1, 10 (1 st Cir. 1999).


4

(B) Obligation of public agency (i) In General. If any public agency other than an educational agency is otherwise obligated under Federal or State Law, or assigned responsibility under State policy… to provide or pay for any services that are also considered special education or related services… that are necessary for ensuring a free appropriate public education to children with disabilities within the State, such public agency shall fulfill that obligation or responsibility, either directly or through contract or other arrangement… or an [interagency agreement]. 20 USC §1412(a)(12)(B).


5

The IDEA requires that states “ensure that an interagency agreement or other mechanism for interagency coordination is in effect between each public agency described in subparagraph (B) and the State educational agency, in order to ensure that all services … that are needed to ensure a free appropriate public education are provided, including the provision of such services during the pendency of any dispute under clause (iii).” 20 USC §1412(a)(12)(A).


6

(ii) Reimbursement for services by public agency. If a public agency other than an educational agency fails to provide or pay for the special education and related services described in clause (i), the local educational agency… shall provide or pay for such services to the child. Such local educational agency… is authorized to claim reimbursement for the services from the public agency, and such public agency shall reimburse the local educational agency … pursuant to the terms of the interagency agreement or other mechanism described in subparagraph (A)(i) according to the procedures established in such agreement pursuant to subparagraph (A)(ii)”. 20 USC §1412(a)(12)(B)(ii).


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