Re: Rockland Public Schools v. The Department of Education and Duxbury Public Schools – BSEA #04-2990



<br /> Re: Rockland Public Schools v. The Department of Education and Duxbury Public Schools – BSEA #04-2990<br />

COMMONWEALTH OF MASSACHUSETTS

SPECIAL EDUCATION APPEALS

In Re: Rockland Public Schools v. The Department of Education and Duxbury Public Schools BSEA # 04-2990

DECISION

This decision is issued pursuant to 20 U.S.C. 1401 et seq. (the “IDEA”), 29 U.S.C.794, M.G.L. chs. 30A, 71B, and the regulations promulgated under those statutes.

By agreement of the Parties via telephone conference call of April 2, 2004, a decision in the above-referenced matter would be issued on submission of documents and written arguments to Hearing Officer Rosa I. Figueroa.

Rockland Public Schools’ (hereinafter, “Rockland ), the Department of Education’s (hereinafter, “DOE”) and Duxbury Public Schools’(hereinafter, “Duxbury”) briefs and documents were received on April 23, 2004. The Record closed on the same date.

This matter was argued by:

Diana Gondek, Esq. Attorney for Rockland

Debra Comfort, Esq. Attorney for DOE

Nancy Nevils, Esq. Attorney for Duxbury

Duxbury’s Exhibits (hereinafter, “DE”) 1 through 10, and Rockland’s Exhibits (hereinafter, “RE”) 1 through 4, were admitted in evidence and were considered for the purpose of rendering this decision.

ISSUE PRESENTED:

1. Whether Rockland has programmatic and fiscal responsibility for Student’s special education and related services for the period from June 2002 through the present? If not;

2. Whether Duxbury is responsible for Student’s special education and related services From June 2002 forward?

POSITION OF THE PARTIES:

Rockland’s Position:

Rockland asserts that the DOE erred in its determination that Rockland was fiscally and programmatically responsible for Student’s special education and related services. Student lived with his mother in Attleboro, MA, until he was removed by the Department of Social Services (hereinafter “DSS”) in February 2000. She then moved to Duxbury on Labor Day 2000 where she stayed until March 2001. Mother left that address and for a period of time stayed at her boyfriend’s mother’s house in Rockland until August 2, 2001, when she and her boyfriend leased a separate apartment in Rockland. According to Rockland, Mother never intended to reside in Rockland and she therefore maintained her post office box in Duxbury, MA. Rockland argues that a person’s residence involves not only physical presence but also intention to remain at that place and since Mother did not intend to remain at the first Rockland address, Duxbury is responsible for Student’s education.

Duxbury’s Position:

Duxbury asserts that the DOE’s determination that Rockland was responsible for Student’s special education from July 2002 forward, issued in December 2003, was correct with one exception; that since Duxbury had begun assuming responsibility for Student in June 2002, Rockland’s responsibility should have begun as of June not July.

DOE’s Position:

The DOE states that on or about March 2002, it received a request for reconsideration from Duxbury, based on new information which showed that Mother resided in Rockland when Student was surrendered for adoption. The DOE offered Rockland an opportunity to respond but in November Rockland informed the DOE that it had nothing. The DOE then issued a determination in December 2003 that based on the new information, Rockland was responsible for Student’s education. The DOE stands by its determination of December 2003.

FINDINGS OF FACT

· The Parties agree that Student is a disabled individual as defined by the Individual’s with Disabilities Education Act (hereinafter, “IDEA”).

· In February 2000, while Mother was living in Attleboro, Student was removed from the Mother’s house by DSS and placed in St. Ann’s Home in Methuen, MA as a residential student. (RE-3; DE-1; DE-10) He has been in the custody of DSS ever since. (DE-10)

· St. Ann’s Home is a Massachusetts approved special education private school that offers day and residential services. (DE-10)

· During the Labor Day weekend in September 2000, Mother moved to Duxbury, MA, and resided there through March 1, 2001. (RE-3)

· Mother then stayed with her boyfriend’s mother at 102 Oregon Avenue, Rockland, MA from March 1, 2001 through March 19, 2001 while she prepared to hike the Appalachian Trail, which she planned to do for six months. (RE-3) She however, was injured during the hike and had to end it early. Mother moved back into her boyfriend’s mother’s house in Rockland, MA. (RE-3)

· Mother stayed at the 102 Oregon Avenue in Rockland between the end of May and August 2, 2001 when she and her boyfriend moved into apartment #2 at 458 Market Street, Rockland, MA. (RE-3; RE-4; DE-8)

· Mother surrendered her parental rights giving Student up for adoption on August 1, 2001. (RE-3; DE-10) On the day that Student was surrendered for adoption Mother was living in Rockland, MA. (DE-2)

· On January 17, 2002, Jeremiah Bonham, DSS social worker, wrote to the DOE requesting clarification of school district assignment under 603 C.M.R. 28.03(4). (DE-2) He attached an IEP promulgated by Foxborough Public schools, which ran from March 26, 1999 through January 25, 2000, calling for a 502.2 prototype program to be implemented at the Mabelle M. Burrell Elementary School in Foxborough. (DE-2)

· On January 31, 2002, Marcia Mittnacht, State Director for Special Education, DOE, wrote to Jeremiah Bonham informing him that: Student’s special education program required an in-district placement; Student had not had an IEP in place since 2000; Parent had surrendered her parental rights on August 1, 2001; Parent’s last known address was 47 N. Ocean Drive, Duxbury, MA; Parent was of whereabouts unknown after March 1, 2001. (DE-1) The assignment stated that the Parent’s district, Duxbury, was fiscally and programmatically responsible for Student’s special education program and placement. (DE-1)

· On March 8, 2002, Duxbury requested a Hearing with the BSEA seeking a review of DOE’s assignment of fiscal and programmatic responsibility for Student’s education. Duxbury’s request for Hearing also included Rockland. (DE-2) In its request for Hearing, Duxbury further asked that the BSEA “stay the proceedings” until the DOE had an opportunity to reconsider its initial determination as it was Duxbury’s position that Rockland, not Duxbury, was responsible for Student. ( Id. ) Duxbury further clarified that DSS had placed Student in St. Ann’s in February 2000, and at the time of said placement Student had an IEP calling for a 502.2 prototype program under which he had been progressing effectively. DSS failed to enroll Student in Methuen Public Schools, and therefore, according to Duxbury, funding for Student’s placement in St. Ann’s between February 2000 and February 2001, should be borne by DSS. (DE-2) Also on March 8 th , 2002, Duxbury wrote to Marcia Mittnacht seeking reconsideration and a DOE finding that Rockland be prospectively responsible for Student’s special education. (DE-2)

· On March 18, 2002, Duxbury renewed its request that the BSEA “stay the proceedings” until the DOE had an opportunity to respond to its request for reconsideration of LEA assignment. DOE’s legal counsel assented to this request via letter dated March 20, 2002. (DE-3) The Affidavit of Christopher Parr dated April 17, 2003, was attached. (DE-3)

· In accordance with the DOE’s determination of LEA responsibility, Duxbury performed Student’s three-year re-evaluation in April 2002. (DE-10) His Team convened on April 30, 2002 and found that Student remained eligible to receive special education services. (DE-10) An IEP calling for residential placement of Student at St. Ann’s Home in Methuen was developed. The placement was a cost-share agreement between DSS and Duxbury. This IEP, which covered the period between April 30, 2002 and April 30, 2003, was accepted in full by Student’s surrogate Parent, on May 14, 2002. (DE-10)

· An Affidavit by Christopher Parr, Mother’s boyfriend’s brother, dated April 17, 2003, states that Mother moved into his mother’s apartment at 102 Oregon Avenue, Rockland, MA, between March 1 and April 2001. (RE-2) Mr. Parr and his brother were also living in the same apartment during this time. According to Mr. Parr, Mother went on the Appalachian Trail for about four or five days, his brother picked her up and they returned to 102 Oregon Ave., Rockland, MA, approximately two weeks later. (RE-2) Mother and boyfriend remained at 102 Oregon Ave. until August 2001 when they moved to 458 Market St., Rockland where they lived until December 2001. (RE-2)

· Student’s Team in Duxbury met again on April 30, 2003 and developed a new IEP covering the period from April 30, 2003 through April 29, 2004. The IEP maintained Student’s residential placement in St. Ann’s under a cost share agreement with DSS. The IEP program and placement was accepted in full by the surrogate parent on May 24, 2003. (DE-10)

· On May 15, 2003, Attorney Nevils wrote again to the DOE on behalf of Duxbury, as a follow up to her previous request of March 8, 2002 seeking reconsideration of the initial determination of responsibility for Student. (DE-3)

· Marcia Mittnacht wrote to Alan Dewy, Pupil Personnel Director, Rockland Public Schools, on September 9, 2004, reminding him of Duxbury’s request for hearing and simultaneous request to DOE for reconsideration of LEA assignment. (DE-4) She informed Rockland of the new information submitted by Duxbury which seemed to make Rockland at least partially responsible for Student, attached the documents to her letter and gave Rockland an opportunity to present any relevant information it possessed to contest its responsibility by October 10, 2003. (DE-4) No response was received.

· On or about December 17, 2003, Marcia Mittnacht wrote to Attorney Nevils and Mr. Dewey, at Rockland. (RE-1; DE-5) Ms. Mittnacht was responding to Duxbury’s request for reconsideration of an assignment of fiscal and programmatic responsibility for Student’s special education and related services issued by her in January 2002. ( Id. ) In it, Ms. Mittnacht stated that based on the affidavit of Christopher Parr, stating that Mother resided in Rockland between March and August 2001, and the fact that Rockland did not dispute the affidavit or submit additional information, Rockland was found to be responsible for Student’s education. Since Duxbury had funded Student’s education since June 2002, Rockland’s responsibility should have begun in July 2002. (RE-1; DE-5)

· On January 23, 2004, Rockland requested a Hearing before the BSEA contesting the DOE determination that it had programmatic and fiscal responsibility for Student’s special education. (DE-6) Duxbury requested a postponement of the Hearing on February 3 rd and following two telephone conference calls, on February 18 and April 2, 2004, the Parties agreed that the matter would be decided on briefs and documents due at the BSEA on April 23, 2004. (DE-7; DE-9)

· On April 9, 2004, Mother signed an Affidavit stating that she had been at 102 Oregon Avenue in Rockland as a guest in her boyfriend’s mother’s house between March 1 and 19, and May and August 2, 2001. (RE-3; DE-8) Furthermore, between March 1 and August 2, 2001, she maintained her post office box in Duxbury as she asserted that she “was a guest at her boyfriend’s mother’s house.” (RE-3; DE-8)

· Duxbury has covered the financial costs associated with Student’s educational placement at St. Ann’s Home beginning in June 2002 through December 2003 while DSS paid for all non-educational costs associated with his placement. (DE-10)

CONCLUSIONS OF LAW:

There is no dispute among the parties that Student is an individual entitled to receive special education services under the IDEA. Similarly, the Parties do not challenge the BSEA’s authority under 603 C.M.R. 28.08(3)(a) to resolve their dispute. The issue before me is whether the DOE determination that Rockland is fiscally and programmatically responsible for Student’s special education and related services, is correct. Upon careful consideration of the facts presented to me I find that the DOE’s determination is correct. My reasoning follows:

M.G.L. c.71B§3 mandates that municipalities assume the burden of funding the special education program of eligible children who reside in that municipality. Boston v. Board of Education , 392 Mass. 788, 792-793. Consistent with the authority vested through M.G.L. c.71B, the DOE is authorized to promulgate regulations that clarify how to determine which municipality bears responsibility for planning and funding the special education and related services for eligible school-age students, a determination that can become complicated when considering the multiple circumstances regarding families and living arrangements of these children. George H. and J. Walker Home for Children v. Town of Franklin , 416 Mass. 291, 296 (1983); Board of Education v. School Committee of Amesbury , 16 Mass. App. Ct. 508,512, 452 N.E. 2d 302 (1983).

Duxbury was originally assigned responsibility for Student’s education on January 31, 2002. (DE-1) Duxbury appealed the DOE determination through a hearing request to the BSEA, dated March 8, 2002. Duxbury also requested that the proceedings be Stayed so that the DOE would have an opportunity to reconsider the initial determination, a request which Duxbury renewed on March 18, 2002, and to which DOE assented on March 20, 2002.

Upon submission of additional information which included an Affidavit by Mr. Parr, Mother’s boyfriend’s brother, the DOE reconsidered its previous assignment of responsibility and wrote to Rockland on September 9, 2004 advising Rockland that based on the new information, it could be found fiscally and programmatically responsible for Student’s special education. The DOE’s determination that Rockland was responsible was confirmed through a letter dated December 17, 2003 from Marcia Mittnacht, DOE State Director for Special Education, to Mr. Alan Dewy. (DE-4).

Rockland requested the Hearing that is now before me, on January 23, 2004. (DE-6) It disputes the DOE determination pursuant to 603 CMR 28.03(4)(f) assigning it fiscal and programmatic responsibility for Student’s education.

603 CMR 28.03(4)(g) provides the specific criteria, which must be used by the DOE to assign responsibility to a city, town or school district for the provision of special education to a child. Under this section:

1. The last known Massachusetts residence of the child’s father , mother, or guardian prior to moving from the Commonwealth, dying, surrendering the child for adoption, or having parental rights terminated . (emphasis supplied)

2. When a child’s father and mother are separated or divorced and neither the father nor mother resides in the Commonwealth, the last known residence of the last parent to have lived in Massachusetts.

Fiscal and programmatic responsibility of a school district must be determined according to the parent’s “last known Massachusetts residence”, in terms of where the parent lived prior to termination of parental rights. In the instant case a relevant fact is therefore, the date on which the legal parent’s rights (the second remaining Mother) were terminated, that is August 1, 2002. (RE-3; DE-1; DE-10) Equally important to this determination is the language found at 603 C.M.R. 28.02 (16) defining a parent’s school district. It states that the parent’s school district is,

… the school district where the father, mother, and/or guardian resides, or, if the parents are divorced or separated, the school district where the parent with physical custody of the student resides; or, if the eligible student is in the care or custody of the Department of Social Services or other state agency, the Parent’s school district shall be the district(s) where the parent(s) are living or were last known to be living [emphasis added] without regard to the parent’s custody status.

The language in 603 C.M.R. 28.02 (16) focuses on the place where the parent is living, that is, his/her actual presence. It speaks of where they are , not where they legally reside.

In ascertaining a parent’s last known residence the crucial issue is the location where that parent actually lives rather than the parent’s legal residence. In a footnote in In Re: Lowell Public Schools, Massachusetts Department of Education & Leominster Public Schools , BSEA # 03-2223 (March 1, 2004), Hearing Officer Crane stated that,

There is persuasive legal authority that what is determinative is identification of the city or town where a parent is actually living, rather than the parent’s legal residence. See MGL c. 71B, s. 5 (adjusts fiscal responsibility of a city or town for a student’s special education if the parent “moves to a different school district”); MGL c. 76, s. 5 (child has the right to attend the public schools in the city or town where he or she “actually resides”); Doe v. Anrig , 1986-87 EHLR DEC 558:278, No. 81-1731-T (U.S. Dist. Ct., D.Mass. January 15, 1987) (“If the legislature or the [Massachusetts] Department of Education had intended legal residence, rather than physical presence, to be determinative, they would have said so.”); In Re: Georgetown Public Schools, Beverly Public Schools, Salem Public Schools, and Massachusetts Department of Education ., BSEA # 02-1798, 8 MSER 95, 99-100 (MA SEA April 5, 2002) (school district responsibility determined on the basis of where Mother and Father are actually living during the time period in question, rather than their legal residence), aff’d in City of Salem v. Bureau of Special Education Appeals , Superior Court CA No. 02-0861-D (October 30, 2003); In Re: Andrew M ., BSEA # 96-3249, 2 MSER 133 (MA SEA July 5, 1996) (to read domicile into the federal statute would be inconsistent with statute’s plain meaning); In Re: Wakefield Public Schools , BSEA # 94-0744 (MA SEA October 15, 1993) (distinguishing actual residency from legal residency or domicile).

I, like my brother Hearing Officer, am persuaded that the issue of residency for the purpose of the DOE LEA assignments turns on the actual location of where the parent is actually living. Applying this principle to the case at bar, the evidence shows that Mother lived in Duxbury until March 1, 2001. (RE-3) On March 1 st , she left Duxbury and never returned to live in that district. Her only connection with Duxbury was the post office box she maintained to collect her mail. (RE-3; RE-2) Upon leaving Duxbury, Mother stayed at her boyfriend’s mother’s home at 102 Oregon Avenue, Rockland, MA. Except for the short period of time when Mother hiked the Appalachian Trail, by her own admission and as corroborated by the affidavit of Mr. Parr, between March 1 and August 1, 2002 (date on which she surrendered her parental rights) Mother was in Rockland at 102 Oregon Avenue. (RE-2; RE-3; DE-10) On August 2, 2002, she and her boyfriend moved into an apartment in Rockland, and lived there until December 2002. However, her address, after August 1 st , when her parental rights ended, is irrelevant for the purpose of this decision. (RE-2)

Rockland’s argument that Mother did not intend to make Rockland her residence is non-persuasive. Whether Mother intended Rockland to be her residence is irrelevant as she in fact lived there for several months. Furthermore, she was living at the 102 Oregon Avenue, Rocklnad, MA address on the date on which her parental rights ended. Therefore, the DOE was correct in its determination that Rockland, not Duxbury, is fiscally and programmatically responsible for Student’s special education and related services. Since Duxbury covered Student’s educational expenses starting in June 2002, under a cost-share agreement with DSS, Rockland is responsible to reimburse Duxbury going back to June 2002. Rockland continues to bear responsibility for Student’s educational needs.

Order:

1. Rockland shall assume fiscal and programmatic responsibility for Student’s special education and related services starting in June 2002.

2. Rockland shall reimburse Duxbury for any financial disbursements made by Duxbury for Student from June 2002 through the present.

So Ordered by the Hearing Officer,

_____________________________________

Rosa I. Figueroa

Dated: 5/03/2004


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