COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In re: Salem Public Schools,
Massachusetts Department of Education,
Marblehead Public Schools
BSEA #02-4739
DECISION
On June 4, 2002, Salem Public Schools (Salem) filed a BSEA appeal of a November 26, 2001 and May 17, 2002 determination by the Massachusetts Department of Education (DOE) that the Marblehead Public Schools (Marblehead) and Salem are jointly responsible for the cost of Student’s placement at the Crotched Mountain School in Greenfield, New Hampshire (Crotched Mountain), since Student’s enrollment in July of 1999. On October 4, 2002, Salem filed a Motion for Summary Judgment, asserting that Marblehead alone, is responsible for the Crotched Mountain School’s costs. Marblehead and DOE responded to such Motion, asserting that DOE’s determination of joint responsibility should be upheld. On February 11, 2003, a BSEA ruling issued, granting in part, and denying in part, Salem’s Motion for Summary Judgment. As a result of that ruling, Salem retained its right to appeal DOE’s November 26, 2001 determination of joint responsibility, and such responsibility would be based on Student’s residence. Further, Salem’s lack of notice prior to the fall of 2001 as to Student’s (asserted) residence in the town of Salem, would not insulate Salem from responsibility for Student’s education. Because there remained a factual dispute as to Student’s residence, Salem’s Motion for Summary Judgment was denied as to the ultimate question of responsibility, and a hearing on such matter was held before Hearing Officer Sandra Sherwood on July 17, 2003.1 The parties waived closing arguments. However, at the request of all parties, the record remained open until August 19, 2003, in order to allow the parties to attempt settlement. No such settlement was achieved.
Persons present at th hearing were
Matthew MacAvoy Attorney for Marblehead Public Schools
John Keenan Attorney for Salem Public Schools
Robert Bellucci Special Education Administrator, Marblehead Public Schools
Debra Comfort Attorney for Massachusetts Department of Education
Father (testimony via telephone)
Mother (testimony via telephone)
ISSUE
Whether DOE correctly determined that Student resides with his Father in the town of Salem, Massachusetts (in addition to his residing with his Mother in the town of Marblehead, Massachusetts), and that Salem and Marblehead would be jointly responsible for Student’s Crotched Mountain School placement, beginning in the fall of 19992 .
STATEMENT OF THE FACTS
Student is a fifteen-year old child diagnosed with cerebral palsy, seizure disorder, and visual issues, and is eligible for special education and related services. He attended Marblehead’s Middle School from 1997-1999. Since 1999, he has attended and continues to attend Crotched Mountain, a residential special education school in Greenfield New Hampshire. (Father)
Father has resided in the town of Salem, Massachusetts since 1995. Student’s mother has resided in the town of Marblehead, Massachusetts since 1996. Prior to that, Parents resided in California, where, in 1994, they entered into a written conciliation court agreement and stipulated order regarding the custody of Student. That is, they agreed, and the court ordered, that the parents shared joint legal custody, but because Father lived out of state, the “primary physical custody” would be in Mother, and Father’s “period of responsibility, care and control of [his son]” would be one month during the summer, and one week during Christmas holidays. (M-2) This court-ordered agreement was never modified after Parents moved to the towns of Salem and Marblehead, Massachusetts. However, Parents assert that by mutual agreement, they have shared physical custody since then. (M-1, Father) Father stated such on October 1, 2002, “under pains and penalties of perjury”, elaborating that his son spends parts of the vast majority of weekends and vacations at his Salem home, including overnight stays. He stated that he shared the physical custody “during virtually all periods of time during the last three years when [his son] has been home from [the Crotched Mountain School]”. (M-3) Through testimony, he elaborated on his care for his son and on his son’s residence with him. He and his ex-wife have worked cooperatively in their son’s best interest. They both have attended the many TEAM meetings at Marblehead. Further, although Mother may drive their son to and from Crotched Mountain, given Father’s work schedule, Student stays almost equally with both parents most weekends, sometimes sleeping at Mother’s and sometimes Father’s. (His bedroom at Father’s is upstairs, and so Father carries him up. As his son gets older, he may need to move to a different house in order that his son’s bedroom can be on the first floor.) Father and his son explore various sites in the town of Salem such as the Peabody Museum, Willows Amusement Park, restaurants, etc. He also visits his son at Crotched Mountain one weekend every one or two months. (They may go skiing or horseback riding together during such times.) Because of the good working relationship between Mother and Father, Father is able to share almost 50% of Student’s care with Student living with him as much as with Mother, despite Father’s long work hours. (Father)
FINDINGS AND CONCLUSIONS
The overriding principle in determining LEA responsibility is that programmatic/fiscal responsibility for Student’s education rests with the municipality wherein the student resides. Such is statutorily prescribed in Chapter 71B §3, and judicially enforced in Walker Home for Children v. Franklin, 416 Mass. 291 (1993): “… the school committee of every city, town or school district shall identify the school age children residing therein who have special needs … (and) provide or arrange for the provision of (a) special education program (for such children).” Chapter 71B §3 (See the February 11, 2003 BSEA Ruling on Motion for Summary Judgment in this case, pages 8-11, for further discussion of physical custody and residence factors in determining LEA fiscal/programmatic responsibility.)
Without any question, Father was persuasive that, not withstanding a previous court -ordered settlement agreement, he and Mother have, since 1999 (the time in question), shared joint physical custody and joint care for their son, and without question, Student has resided and continues to reside with both parents. (Father, M-1, M-2, M-3) Clearly, this is not a situation where the child lives with one parent and visits the other. Indeed, Salem provided nothing that would conflict with a finding of joint residency. Accordingly, pursuant to 603 CMR 28.03(4)(e)3 , and 603 CMR 202.1(g)4 , DOE rightly determined Salem and Marblehead to be jointly fiscally/programmatically responsible for Student’s Crotched Mountain placement since July of 1999.
ORDER
Salem and Marblehead shall fulfill their joint financial and programmatic responsibilities for Student’s Crotched Mountain School placement since July of 1999.
____________________________
Sandra W. Sherwood
BSEA Hearing Officer
Date: November 25, 2003
1
The record consists of approximately 1 hour or recorded testimony as well as Salem exhibit #1 and Marblehead exhibits #1 – 10 and Joint Stipulations of Fact.
2
At the hearing, Salem requested reconsideration of the February 11, 2003 BSEA Ruling wherein Salem’s lack of notice of Student’s asserted residence was deemed not to insulate Salem from its responsibilities. Such request was denied. However, a clarifying comment is called for. Salem referred to Massachusetts’ regulation 603 CMR 28.06(2)(e) stating that when an out-of-district placement is being considered, the LEA must notify any other LEA that may bear responsibility. Salem asserts that Marblehead’s failure to comply with this notice requirement should insulate Salem from any responsibility prior to notice. The applicable regulation states:
(e) Placement meeting . Upon developing the IEP, if the needs of the student and the services identified by the Team are complex, and the Team is considering an initial placement out-of-district or a different setting for a student who has been served in an out-of-district program, the school district may schedule a separate Team meeting to determine placement. …
1. Any other school district that may be financially or programmatically responsible for the student shall be invited to participate in the placement meeting and shall receive notice of such meeting at least five school days prior to the meeting. …
603 CMR 28.06(2)(e)
As stated in the February 11, 2003 BSEA Ruling, the apparent inequity of this situation is not unnoticed. However, responsibility is based on residency, not on notice. DOE’s 603 CMR 28.06(2)(e) notice requirement is important, and DOE may choose to address non-compliance in some fashion. However, as stated in the Ruling, given the strong statutory and court affirmed call for residency as the determinant of fiscal/programmatic responsibility, lack of notice, even if required by regulation, cannot insulate Salem.
3
603 CMR 28.03(4)(e ) states: Where a student is in a living situation [residing with a parent, and attending a residential special education school], … and the student’s father and mother live in two different school districts, such school districts shall be jointly responsible for fulfilling the requirements of 603 CMR 28.00 except if the parents are divorced or separated and the father or mother has sole physical custody.
4
603 CMR 202.1(g) states: Where the parents of a [residentially placed child] live in different school districts, such school districts shall be jointly liable for fulfilling the requirements of these regulations .