Plymouth Public Schools – BSEA # 06-2584



<br /> Plymouth Public Schools – BSEA # 06-2584<br />

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

In Re: Plymouth Public Schools

BSEA # 06-2584

RULING ON PLYMOUTH’S JOINDER MOTION

Introduction

On December 1, 2005, Student and his Parent (through their attorney) filed with the Bureau of Special Education Appeals (BSEA) a Hearing Request against Plymouth Public Schools (Plymouth) alleging that Plymouth failed to provide Student with a free appropriate public education for a period of time from April 30, 2005, and that Student requires a residential educational placement in order to address appropriately his complex learning and emotional disabilities so that he would have the opportunity to make effective educational progress.

On January 17, 2006, Plymouth filed with the Bureau of Special Education Appeals (BSEA) a Motion to Join the Department of Mental Health, the Department of Youth Services and the Department of Social Services as Necessary Parties to this Action ( Joinder Motion ). The instant Ruling addresses Plymouth’s Joinder Motion .

The Massachusetts Department of Mental Health (DMH), the Massachusetts Department of Social Services (DSS) and the Massachusetts Department of Youth Services (DYS) each filed an opposition to the Joinder Motion . Parent filed a response in support of joining DMH, and in opposition to joining DSS and DYS. A telephonic Motion Hearing regarding Plymouth’s Joinder Motion was held on January 27, 2006.

In order to apprise the parties in a timely manner of my conclusions regarding joinder of DSS and DMH, I issued a Preliminary Ruling on January 27, 2006, in advance of the full text of this Ruling, allowing Plymouth’s Joinder Motion with respect to DMH and denying without prejudice the Joinder Motion with respect to DSS .

With respect to DYS, the record was kept open until January 31, 2006 to allow Plymouth to respond to DYS’s opposition as it was received late by Plymouth’s attorney.

Summary of the Facts

The following facts, taken from Parent’s Hearing Request , are assumed to be true for purposes of this Ruling only.

Student is a sixteen-year-old young man who lives with his permanent legal guardian (Parent) in Plymouth, MA. Student is currently diagnosed with posttraumatic stress disorder, attention deficit hyperactivity disorder and Bipolar Disorder. Student’s IEP Team has affirmed that Student has a serious emotional disturbance and specific learning disabilities requiring special education and related services in order to make effective educational progress.

Student has demonstrated self-endangering, aggressive, and hyperactive behaviors since he was an infant. He reportedly engaged in fire-setting behaviors and suicidal ideation at age 3 to 4. As Student has grown older, these behaviors have presented more challenges to teachers, peers and family.

Student has had multiple psychiatric hospitalizations, beginning in 1994 in response to suicidal and fire-setting behaviors and most recently from April 30, 2005 to July 11, 2005.

In August 2004, Student’s IEP Team concluded that his significant emotional difficulties required placement in a therapeutic setting, and an IEP was written for the North River School in Rockland, MA. Student continued to attend North River until he was terminated for alleged possession of a dangerous weapon in November 2005. Student remained at home until he was enrolled at the Southeast Alternative School in January 2006.

Legal framework

The issue before me is whether DMH, DSS or DYS should be joined as a necessary party. Pursuant to BSEA Hearing Rule 1F, 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. Factors that are to be considered in determining whether to join any of these three state agencies 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 (for example, DMH, DSS and DYS) includes the following language:

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, 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 “in addition to” language within this statute 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. On the other hand, 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.2

Discussion

Positions of the parties .

In her Hearing Request , Parent has taken the position that Student requires a residential placement, which Plymouth has responsibility for providing to Student.

Plymouth takes the position that in the event that it were demonstrated at an evidentiary Hearing that a residential placement is required, the residential portion of the placement would not be educationally related and therefore not the responsibility of Plymouth. Also, Plymouth argues that any necessary residential component may be the responsibility of DMH, DSS or DYS, and that it would be important for the BSEA to address their responsibilities at the same time that it determines Plymouth’s educational responsibilities; and for this reason, the agencies should be joined as necessary parties.

Plymouth further supports its Joinder Motion by taking the position that DMH, DSS and DYS may be required by the BSEA to provide certain additional adjunct services (other than the residential component of Student’s placement) necessary to support Student’s educational services. Plymouth also argues that each of the named state agencies has significant, relevant expertise that is necessary to the appropriate resolution of this dispute. Finally, Plymouth takes the position that an agreement was reached between Plymouth, DSS and DMH to cost share a residential placement, but that DMH has sought to avoid any responsibility under such an agreement, and that joinder of DMH may be necessary for the Hearing Officer to enforce this agreement.

Parent argues that a residential placement is needed for educational reasons and is therefore the sole responsibility of Plymouth. Parent nevertheless supports joinder of DMH because of its relevant expertise, likely contribution to the evidentiary Hearing through witness testimony, and possible responsibility to provide needed services in addition to what Plymouth must provide Student. However, Parent opposes joinder of DSS and DYS principally on the grounds that each state agency has insufficient involvement with Student to warrant joinder.

DMH and DSS oppose joinder, principally on the bases that the BSEA has no authority to order them to provide services, that any DMH or DSS expertise may be contributed to the BSEA Hearing process (for example, through witness testimony) without joinder and that in any event, it would be more appropriate to first determine Plymouth’s educational responsibilities before considering any DMH or DSS obligations.

DMH further argues that all of Student’s social, emotional and behavioral needs are appropriately the responsibility of Plymouth, and therefore the BSEA may not order DMH to provide Student with additional services. DMH also argues that the alleged agreement between Plymouth, DSS and DMH was rejected by DMH at the Regional level. Finally, DMH takes the position that the limited authority of the BSEA to join a state agency does not apply in the instant dispute.

DYS argues that the only juveniles who can be accepted as clients of DYS are those who have been committed to DYS by a court of competent jurisdiction and that the BSEA has no authority to join DYS as a party on the basis that Student might, at some future date, be committed to DYS. DYS notes that Student is not now nor ever has been a client of DYS.

Joinder of DYS and DSS .

As discussed above, any state agency services ordered by the BSEA must be “in accordance with the rules, regulations and policies” of that agency.3 I look to these rules, regulations and policies to determine whether Student falls within the kinds or classes of persons DYS and DSS may serve.

DYS is not now and never has been involved in any way with Student. DYS does not provide services on a voluntary basis; services from DSS would require a court commitment. It is, of course, possible that DYS would become involved with Student in the future, but I have no ability to gauge the likelihood of this occurring, and no party or prospective party has argued that DYS’s future involvement with Student is likely. In any event, I concur with DYS that the BSEA should not join DYS as a party on the basis that Student might, at some future date, be committed to and receive services from DYS.

DSS’s involvement is more substantial. DSS removed Student from the home of his biological parents and, eventually, placed Student with and supported the legal guardianship of Parent.

However, more recently, DSS involvement has been minimal. DSS has continued to fund a guardianship subsidy on a monthly basis consisting of financial assistance and health insurance. Also, DSS agreed with Plymouth and DMH to fund a portion of a 90-day diagnostic residential placement. Apparently the agreement did not envision DSS assuming case management responsibilities or taking Student into placement. The only other relatively recent involvement of DSS was on or after May 2005 when DSS participated in an interagency meeting of state agencies and school officials, during which Student’s status and needs were discussed. DSS has provided neither case management nor other services to the family since July 1998.

Parent’s attorney has represented that Parent has not sought and has no plans to seek voluntary services from DSS. DSS does not have care or custody of Student. There is no reason to believe that DSS would find Student and his family to be in need of and appropriate for receipt of involuntary services.

As I concluded above with respect to DYS, I concur with DSS that the BSEA should not join DSS as a party on the basis that Student might, at some future date, fall within the class of persons appropriate to receive DSS services.4

In its written opposition to the Joinder Motion and during the Motion Hearing, DSS has taken the position that even if one were to assume that Student is eligible for and in need of DSS services and even if one were further to assume that these services could be appropriately ordered by a BSEA Hearing Officer, the BSEA Hearing regarding Plymouth’s obligations to Student should occur first, without involvement of DSS as a party. Then, at the conclusion of that Hearing and after a decision by the Hearing Officer regarding Plymouth’s responsibilities to provide a free appropriate education, DSS joinder may be considered and a second Hearing would occur, if necessary, regarding the responsibilities, if any, of DSS. DSS agrees that under this arrangement, it would accept (without opportunity to present evidence, cross-examine witnesses or argue to the contrary) the BSEA determination of Plymouth’s educational responsibility even though this determination could influence what services, if any, must be provided by DSS.

This position taken by DSS further supports a conclusion that joinder should not occur at this juncture. In the unlikely event that Student were to become eligible for DSS services, joinder may then be considered if additional services were needed in order for student to be able to access or benefit from Plymouth’s special education program and services.

Plymouth makes further argument, however, that in addition to the possible provision of services, DSS has valuable expertise and experience relevant to children who have a history of abuse and how those children should be serviced. Plymouth has pointed, in particular, to a DSS staff person who is knowledgeable regarding the benefits of specialized foster care, as compared to an educational residential facility for children such as Student; and Plymouth has correctly noted DSS’s historical involvement with and knowledge of Student in particular. There is no dispute that DSS’s specialized expertise and experience may be relevant to Student’s needs and how they may be met.

Through its attorney, DSS has indicated its ability and willingness to provide input and guidance to DMH and Plymouth, as it has in the past, without being a party to this dispute. This might occur, for example, as a witness at the evidentiary Hearing. I am persuaded by DSS that its expertise and experience may be accessed without the necessity of its becoming a party to the present dispute.

DYS has experience and expertise relevant to delinquent youth. Plymouth has not established that this experience and expertise is likely to be relevant to the BSEA evidentiary Hearing regarding Student.

Therefore, I conclude that I have insufficient basis for finding that either DSS or DYS is a necessary party pursuant to BSEA hearing Rule 1F. For these reasons, I decline to join DSS and DYS.

Joinder of DMH .

DMH stands in a different position than DSS or DYS, in part because DMH has been and continues to be involved with Student and his family.

It is not disputed that pursuant to its own rules, regulations and policies relative to providing services for children with a serious emotional disturbance, Student is eligible to receive DMH continuing care services, and for many years DMH has been providing the family with therapeutic services in the community. Student currently receives case management and certain other community support services from DMH through Community Care Service and Old Colony YMCA.

DMH’s participation in the evidentiary Hearing will likely be useful to both Plymouth and Parent because of DMH’s involvement with and expertise regarding Student’s mental health needs. More importantly, DMH’s involvement may be necessary in the event that Plymouth’s educational responsibilities to Student are determined through the BSEA Hearing to be insufficient to meet his needs and that additional services within the province of DMH are required for Student to access or benefit from Plymouth’s educational services.5

During the Motion Hearing, DMH took the same position as DSS (noted above) with respect to BSEA’s first determining Plymouth’s educational responsibilities – that is, DMH argued that the BSEA should determine Plymouth’s responsibilities first, without involvement of DMH. Subsequently, in the event that additional services may be needed from DMH, joinder could then occur and a second BSEA hearing would determine DMH’s responsibilities, if any. DMH agreed that, under this process, it foregoes any opportunity to participate in the BSEA determination of Plymouth’s educational responsibilities, even though this determination may possibly impact the responsibilities of DMH.

DMH’s position may be persuasive in certain cases. In the instant dispute, however, the apparent severity of Student’s mental health needs, the current involvement and expertise of DMH, the likely usefulness of DMH’s participation in the Hearing regarding my determination of Student’s needs and how they should be met, and the importance of resolving Plymouth’s and DMH’s responsibilities to Student as quickly as possible all argue in favor of a single BSEA hearing with DMH as a party. I also find it relevant to this analysis that both the Parent and Plymouth seek joinder of DMH.

Finally, I address an argument made by DMH on the basis of state and federal regulatory language relevant to resolution of interagency disputes.6 DMH takes the position that this language should be read to require Plymouth, as the responsible school district, to provide the required services without delay and that issues of payment or reimbursement (for example, reimbursement by DMH if DMH were found to be partially of fully responsible for the needed services) may be subsequently addressed by the BSEA.

The Massachusetts Department of Education regulatory language does not establish this principle by itself, but rather states that the BSEA’s authority is to be exercised consistently with the cited federal regulations (34 CFR 300.142(a)). I therefore consider the relevance of the federal regulations to the instant dispute.

34 CFR 300.142(a) provides in relevant part as follows:

The Chief Executive Officer or designee of that officer shall ensure that an interagency agreement or other mechanism for interagency coordination is in effect between each noneducational public agency described in paragraph (b) of this section and the SEA, in order to ensure that all services described in paragraph (b)(1) of this section that are needed to ensure FAPE are provided, including the provision of these services during the pendency of any dispute under paragraph (a)(3) of this section. [Emphasis supplied.]

This regulatory language is relevant only to the services described in paragraph (b)(1) of this section, which paragraph provides in relevant part as follows:

If any public agency other than an educational agency is otherwise obligated under Federal or State law, or assigned responsibility under State policy or pursuant to paragraph (a) of this section, to pro­vide or pay for any services that are also considered special education or related services (such as, but not limited to, services described in §300.5 relating to assistive technology devices, §300.6 relating to assistive technology services, §300.24 relating to related services, §300.28 relating to supplementary aids and services, and §300.29 relating to transition serv­ices) that are necessary for ensuring FAPE to children with disabilities within the State, the public agency shall fulfill that obliga­tion or responsibility, either directly or through contract or other arrangement. [Emphasis added.]

I read this language to refer to special education and related services, which, in Massachusetts, are the sole responsibility of the local education agency (LEA) — in this case, Plymouth. I do not believe that I have the authority to order DMH to provide or pay for any special education or related services that are the responsibility of the LEA. Therefore, DMH’s argument that, pursuant to this federal regulation, I could order Plymouth to provide certain services to Student and, at a later time, possibly order DMH to reimburse Plymouth for part or all of these services, does not, in my view, have merit.

In conclusion, I find that without the presence of DMH in the special education Hearing, there is a significant likelihood that the BSEA would be unable to fashion an order that would provide complete relief to Student consistent with his rights under state and federal special education law. Therefore, DMH is joined as a necessary party pursuant to BSEA Hearing Rule 1F.

ORDER

Plymouth’s Joinder Motion is ALLOWED with respect to the Department of Mental Health and DENIED without prejudice with respect to the Department of Social Services and the Department of Youth Services.

By the Hearing Officer,

_________________

William Crane

Date: February 9, 2006


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: Gloucester Public Schools , BSEA # 04-3543, 10 MSER 389 (SEA MA 2004); In Re: Plymouth 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

MGL c. 71B, s. 3; 603 CMR 28.08(3).


4

See, e.g., In Re: Ware Public Schools & Wallace , BSEA # 05-4126, 11 MSER 137, 139 (SEA MA 2005) (denying joinder because “[t]here is no evidence that either DMH or DMR is currently or potentially obligated under their own regulations to provide any service at all to [Student] at this time”) (Byrne, HO).


5

See, e.g., In Re: Lunenburg Public Schools and Department of Mental Health , BSEA # 05-0799, 10 MSER 478 (SEA MA 2004) (Byrne, HO); In Re: Southern Berkshire Regional School District , BSEA # 03-2013, 9 MSER 62 (SEA MA 2003) (Byrne, HO).


6

34 CFR 300.142; 603 CMR 28.08(3).


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