Somerset and Fall River Public Schools and DESE – BSEA # 10-5775



<br /> Somerset and Fall River Public Schools and DESE – BSEA # 10-5775<br />

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

In Re: Somerset Public Schools v. Fall River Public Schools & DESE

BSEA No. 10-5775

DECISION BASED ON WRITTEN SUBMISSIONS

This decision is issued pursuant to the Massachusetts special education statute, G.L. c. 71B (“Chapter 766”), the Massachusetts Administrative Procedures Act, G.L. c. 30A, and regulations promulgated under those statutes.

On April 16, 2010, the Somerset Public Schools (Somerset) filed a request for a hearing with the Bureau of Special Education Appeals (BSEA) contesting the Massachusetts Department of Elementary and Secondary Education’s (DESE’s or Department’s) assignment of school district responsibility to Somerset, and seeking an order indicating that Somerset is not programmatically or fiscally responsible for Student’s education.

During a pre-hearing telephone conference, the parties agreed to have the BSEA issue a decision based solely on written material, without a hearing, pursuant to Rule XII of the Hearing Rules for Special Education Appeals . By agreement, the deadline for submitting these documents was May 1, 2010. Accordingly, on or before May 4, 2010 Somerset,1 Fall River, and DESE each filed documentary evidence and memoranda supporting their respective positions, and the record closed on that day.

The documentary record consists of Somerset’s exhibits S-1 through S-11, DESE’s exhibits D-1 and D-2; Fall River’s exhibits FR-1 through FR-3, and the memoranda of all parties. The Department of Children and Families also filed a position statement, but DCF was not a party to this matter.

ISSUE PRESENTED

Did DESE correctly assign educational responsibility for Student to Somerset or was (and is) Fall River the responsible school district?

POSITIONS OF THE PARTIES

Position of Somerset

Because Student lives in a Department of Children and Families (DCF) foster home in Fall River, the BSEA must apply the Chapter 766 regulation governing foster children, which makes the school district in which the foster home is located, namely, Fall River, programmatically and fiscally responsible for her education.

Position of DESE and Fall River Public Schools2

Pursuant to applicable law and policy, the DESE has determined that because Student is in a temporary foster home, she is homeless within the meaning of the relevant federal statute, the McKinney-Vento Homeless Education Act (McKinney-Vento), and state policies implementing McKinney-Vento. Under these circumstances, the BSEA must apply not the state regulation pertaining to LEA responsibility for children in DCF foster care, but, rather, the regulation governing LEA assignments for homeless children. The applicable regulation gives Student the right to continue attending school in Somerset. If Somerset continues to disagree that Student is homeless, its recourse is to request the DESE Commissioner to reconsider Student’s status.

FACTS

The following facts are not in dispute:

1. Student is a kindergartner who has attended elementary school in Somerset from prior to the filing of this hearing request until the present. There is no dispute that Somerset recently has found Student to be eligible for special education services and has issued an IEP for her. (S-9; Memorandum of Fall River)

2. Prior to mid-February of 2010, Student lived with her guardian in Somerset. On or about February 16, 2010, the Juvenile Court awarded temporary custody of Student to DCF. Upon receiving temporary custody, DCF removed Student from her home in Somerset and placed her in a foster home in Fall River. On or about April 26, 2010, the Juvenile Court extended the temporary custody order. Student has lived continuously in the Fall River foster home from the date of her placement until the present, pursuant to the temporary custody order. ( Memorandum of Fall River; S-10)

3. In a letter dated February 24, 2010, Student’s DCF social worker, Timothy Tetrault, informed the McKinney-Vento Liaison for the Fall River Public Schools (Fall River), that Student had been placed in a “temporary foster home” in Fall River, attends her original elementary school in Somerset and “would require transportation to and from school daily that would be appropriate based on her age.” (S-10)

4. There is no dispute that by this letter, DCF was claiming homeless status for Student based on the temporary nature of the foster home placement. Pursuant to McKinney-Vento Homeless Education Act, 42 USC §11431, et seq ., homeless students have the right to attend either the school they attended before becoming homeless (the “school of origin”), or a school within the district in which they are temporarily living. The districts are to share responsibility for transporting children from their temporary residences to the school of origin. Id., See also DESE Homeless Education Advisory 2002-1 .

5. In a letter to Mr. Tetrault dated February 25, 2010, Somerset’s Director of Special Education, Susan K. Doe, disputed DCF’s claim that Student was homeless, which status would entitle Student to attend school in either in Somerset (her school of origin) or Fall River. Rather, Ms. Doe’s letter stated that the “Somerset School District is not in agreement that [Student] is a homeless student….[B]ecause she is in a foster placement3 the regulations state that ‘where a foster child is residing is where she goes to school.’ Based on this information, you should register this child in her local neighborhood school…” (S-9)

6. On February 26, 2010, Ms. Doe wrote a second letter to Mr. Tetrault, advising him that Somerset had filed “an LEA clarification assignment” with DESE, because Somerset continued to disagree that Student was or is homeless. The letter reiterated that because Student is in a foster placement, she should attend school in Fall River, where the foster home is located, pursuant to 603 CMR 28.10(2)(c). (S-9)

7. By letter dated March 4, 2010 to DESE’s legal counsel, Somerset’s attorney disputed DCF’s assertions that Student was homeless, and again put forward its position that because Student is in a DCF foster home located in Fall River, it is Fall River that is programmatically and financially responsible for her education pursuant to 603 CMR 28.10(2)(c). The letter further advised DESE that Somerset was forwarding Student’s records to Fall River, and that Student’s last day of school in Somerset would be Friday, March 5, 2010. Finally, the letter stated that Somerset would file a hearing request with the BSEA if DESE determined Student to be homeless “without adequate proof.” (S-8)

8. As required by McKinney-Vento, DESE has established an internal McKinney-Vento Dispute Resolution Process to be used when a school district challenges the enrollment rights of a child who is, or claims to be, homeless. In brief, the process requires the school district disputing the homelessness claim to provide the parent or guardian as well as DESE with written notice of the reasons for the challenge. The process also provides the parent or guardian an opportunity to appeal the district’s challenge to the DESE Commissioner. The Commissioner or designee must issue a written decision on the dispute, and this decision is final. The challenging school district must continue to allow the student to attend until the Commissioner or his/her designee has rendered a final decision on the dispute. Homeless Education Advisory 2007- 7, 7A, 7B.

9. By letter dated March 4, 2010, legal counsel for DESE informed Somerset’s counsel of the McKinney-Vento Dispute Resolution Process described above, and provided counsel with copies of pertinent DESE policy statements and forms. Somerset, through counsel, immediately provided the requisite notice to Student’s DCF worker and DESE of its final decision to deny Student’s request to remain enrolled in Somerset as a homeless student. (S-6, 7, 8, 9)

10. On March 8, 2010, DCF filed an appeal of Somerset’s decision with DESE, pursuant to the McKinney-Vento Dispute Resolution Process. (S-4)

11. By a letter to Somerset dated March 12, 2010, the DESE Commissioner’s Designee for McKinney-Vento Homeless Education Dispute Resolution issued a final written decision determining that Student is homeless by virtue of her placement in a temporary foster home. The decision states that as a result, Student has the right to attend the Somerset Public Schools, and that the cost and arrangement of her transportation must be shared equally between Fall River and Somerset, unless they agree to another method of apportioning responsibility for transportation. (S-3)

12. On March 15, 2010, DESE issued an LEA assignment determining that the Somerset Public Schools is programmatically and fiscally responsible for Student’s education pursuant to 603 CMR 28.10(5), which governs LEA assignments for homeless children who are or may be eligible for special education. (S-2)

13. On March 16, 2010, Somerset filed the BSEA hearing request that is the basis for this Decision. (S-1)

FINDINGS AND CONCLUSIONS

Based on a careful review of the evidence and applicable law, I conclude that Somerset is programmatically and fiscally responsible for Student’s educational placement because DESE’s prior determination that Student is homeless cannot be disturbed by this BSEA due process hearing. My analysis follows.

Legal Framework

This case involves the intersection of two statutory schemes which both address the assignment of school district responsibility: first, the federal and state special education statutes and implementing regulations and, second, the McKinney-Vento Homeless Education Act and corresponding policy guidelines issued by DESE.

Federal and State Special Education Law Regarding LEA Responsibility Based on Residency

The IDEA requires states to ensure that each local education agency provides for the “education of children with disabilities within its jurisdiction.” 20 USC §1413(a)(1), but does not dictate how to determine whether a child, parent, or guardian is or a “resident” of a school district. Rather, the IDEA leaves states to determine “the assignment and allocation of financial responsibility for special education cost,” as well as the definition of “residency.” Manchester School District v. Crisman and Pittsfield School District , 306 F.3d 1, 37 IDELR 211 (1st Cir. 2002).

Massachusetts law gives responsibility for special education services to the city, town, or school district where the student resides, which usually is the residence of one or both parents.4 For more complex circumstances,5 DESE has enacted regulations at 603 CMR 28.10 that address a range of different living situation, including various types of out-of-home placement. Under 603 CMR 28.10(2)(c), “[w]hen students have been placed or are funded by the Department of [Children and Families] in a foster home in Massachusetts,” the school district where the student resides, i.e ., where the foster home is located, has programmatic and fiscal responsibility for eligible students.

According to Chapter 766 regulations at 603 CMR 28.10(8)(a), DESE may assign or assist school districts in assigning educational responsibility for students who are living in one of the types of out-of-home-placement listed in 603 CMR 28.10(3) and (4), and who also meet one of the following five criteria:

1. who are in the care or custody of a state agency and have no parent or legal guardian residing in Massachusetts; or

2. when the residence or residential history of the student’s parent(s)…is in dispute; or

3. when the student has a legal guardian who has been appointed on a limited basis; or

4. when a student has not yet been determined to be eligible and/or is not receiving services; or

5. when a student is in the care or custody of a state agency and is hospitalized and…will not return to the [prior] residence…

Neither DESE nor either school district here has explicitly set out how Student’s particular living situation fits within the parameters of 603 CMR 28.10(8)(a) such that DESE may assign an LEA under that provision. Further, DCF (although not a party) has suggested that this LEA assignment process is inapplicable here, in a case where the Student has been found to be homeless.

However, Student’s placement arguably fits within the list set forth in 603 CMR 28.10(4), which is not intended to be exhaustive and includes relative’s homes, respite facilities, and the like. Additionally, Student met the requirements of 603 CMR 28.10(8)(a)(4) when Somerset requested DESE’s intervention, as the Student had been referred for special education but had not yet been determined to be eligible. In any event, none of the parties has disputed DESE’s authority or responsibility to make or clarify an LEA assignment in the instant case, and the presence or absence of such authority would not affect the outcome here, as will be explained below.

Rights of Homeless Students in State Care Under McKinney-Vento

As stated above, under the provisions of the McKinney-Vento Homeless Education Act, 42 USC §11431, et seq ., homeless public school students, whether or not they are eligible for or receiving special education, are entitled to choose either to continue attending school in the district where they attended before becoming homeless (the “school of origin”), or to enroll in the school district where they are living temporarily. The statute also requires districts to provide homeless students with transportation to and from school, if necessary, and to apportion the costs of transportation between the district of origin and the district where the student is temporarily living. (Id)

To assist school districts in implementing McKinney-Vento, DESE has issued several Advisories which contain detailed guidance on McKinney-Vento policies and procedures. Homeless Education Advisory 2004-9 provides such guidance regarding the “identification, enrollment, attendance, and success in school of children and youth who are in the care of the state while awaiting foster care placement and who are therefore designated as being homeless.” Id . The Advisory elaborates that this group of children includes those in placements that are “temporary by design,” (such as shelters, “bridge homes” or diagnostic placements), and may include children in placements “that are not temporary by design,” (such as a foster home) but which may be a temporary placement for an individual child. ( Id .) Each school district’s “homeless liaison” is responsible for identifying children in state care who may be homeless, in consultation with the child’s social worker.

As stated in the Statement of Facts, above, any enrollment disputes between a school district and a student claiming to be homeless, must be resolved via the DESE McKinney-Vento dispute resolution process, and the student must be allowed to continue attending his or her chosen school until resolution. ( Homeless Education Advisories 2003-7, 7A, and 7B ).

The rights of special education students who are homeless are further set forth in state regulations at 603 CMR 28.10(5), which essentially restates a child’s McKinney-Vento rights, and makes clear that state procedures and criteria for assigning school district responsibility for special education students may not restrict any rights such students may also have if they are homeless:
(5) Responsibility for Homeless Students . Nothing in 603 CMR 28.00 shall

limit the educational rights of homeless students and parents afforded under…(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…

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…chooses to enroll the student in the school district where the shelter or temporary residence is located…

603 CMR 28.10(5).

Analysis

All disputes over whether a student is homeless within the meaning of McKinney-Vento are to be resolved by a separate DESE process, which culminates in a final decision by the DESE Commissioner or designee. Somerset has pointed to no statute, regulation, case law, or policy statement that grants the BSEA the right to second-guess or undo such a DESE determination.

The inescapable conclusion here is that the BSEA lacks authority to make any changes to DESE’s final determination that Student is homeless, or, in fact, to do anything at all other than decide whether DESE’s assignment of Somerset as the responsible school district correctly applied 603 CMR 28.10(5) to the facts of the case.

Where, as here, a child is classified as homeless under McKinney-Vento, has all of the enrollment rights of a homeless child, the regulation pertaining to foster children, 603 CMR 28.10(2)(c) cannot apply because it is essentially trumped by Section 28.10(5), and because application of 28.10(2)(c) would impermissibly limit Student’s McKinney-Vento rights by precluding her ability to elect a school district, in violation of Section 28.10(5).

If Somerset continues to disagree that Student is homeless, and/or receives additional information in support of its position, its recourse would be with the appropriate department or division within DESE, rather than with the BSEA.

ORDER

For the reasons stated above, the Somerset Public Schools remain programmatically and fiscally responsible for Student’s educational program.6 Responsibility for transportation must be apportioned according to the requirements of McKinney-Vento.

____________________ _____________________________

Dated:

Sara Berman, Hearing Officer


1

Somerset’s position statement is embodied in the hearing request.


2

DCF’s position is similar to that of DESE. Unlike DESE, however, DCF suggests that the BSEA lacks jurisdiction over the current matter because the underlying dispute is whether or not DESE was correct when it determined that Student was homeless. Such disputes are resolved through a procedure within DESE, not through a due process hearing conducted by the BSEA.


3

Emphasis in original.


4

G.L. c. 71B §1; 603 CMR 28.02(8); 28.10. See also G.L. c. 71§1, requiring cities and towns to provide public education.


5

George H. & Irene J. Walker Home for Children v. Town of Franklin , 416 Mass.291, 296 (1993)


6

The outcome would be the same in this case regardless of whether the BSEA has jurisdiction over the dispute.


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