Georgetown Public Schools, Beverly Public Schools, Salem Public Schools, and Massachusetts Department of Education – BSEA #02-1798



<br /> Special Education Appeals BSEA #02-1798<br />

COMMONWEALTH OF MASSACHUSETTS

SPECIAL EDUCATION APPEALS

In Re: Georgetown Public Schools,
Beverly Public Schools,
Salem Public Schools, and
Massachusetts Department of Education

BSEA # 02-1798

DECISION

This decision is issued pursuant to 20 USC 1400 et seq . (Individuals with Disabilities Education Act), 29 USC 794 (Section 504 of the Rehabilitation Act), MGL chs. 30A (state administrative procedure act) and 71B (state special education law), and the regulations promulgated under said statutes.

A hearing was held on April 2, 2002 in Malden, MA, before William Crane, Hearing Officer. Those present for all or part of the proceedings were:

Nancy Nevils Attorney for Georgetown Public Schools

Patricia White-Lambright Director of Special Education Services, Georgetown PS

Larry Borin Superintendent, Georgetown Public Schools

Debra Comfort Attorney for the Massachusetts Department of Education

Jeffrey Sankey Attorney for the Beverly Public Schools

Debra O’Connor Special Education Administrator, Beverly Public Schools

John Keenan Attorney for the Salem Public Schools

The parties to this proceeding are Georgetown Public Schools (hereafter, GBS), the Beverly Public Schools (hereafter, BPS), the Salem Public Schools (hereafter SPS), and the Massachusetts Department of Education (hereafter, DOE).

The official record of the hearing consists of three documents submitted by GPS and marked as exhibits 1 through 3 (hereafter, Exhibit GPS-1, etc.); fifteen documents submitted by BPS and marked as exhibits A through O (hereafter, Exhibit BPS-A, etc.);1 a single document (affidavit of Mother with five attachments) submitted by SPS and marked as Exhibit SPS-1; two documents submitted by DOE and marked as exhibits 1 and 2 (hereafter, DOE-1, etc.); a Stipulation of Parties filed as a joint exhibit of all four parties (hereafter, Stipulation) and approximately two hours of recorded oral closing argument on April 2, 2002. The parties had previously submitted written arguments.

ISSUE PRESENTED

Does the Georgetown Public Schools, the Beverly Public Schools, and/or the Salem Public Schools have programmatic and/or fiscal responsibility for Student’s special education and related services for the time period of September 7, 1999 through the present?

PROCEDURAL HISTORY

On or about July 13, 2000, Nicholas LaMela, the Massachusetts Department of Social Services (hereafter, DSS) social worker assigned to Student’s case, filed a SPED 766-7 form seeking a DOE determination of school district responsibility for Student’s special education placement. Stipulation, par. 12.

In a letter dated June 13, 2001 from Marcia Mittnacht (DOE State Director for Special Education) to Attorney Paul Cormier, DOE assigned programmatic and fiscal responsibility for Student solely to Georgetown (hereafter, Determination Finding). Stipulation, par. 14; Stipulation Attachment # 2.

By letter dated July 24, 2001, Georgetown requested that the Bureau of Special Education Appeals (hereafter, BSEA) review DOE’s assignment of responsibility. Stipulation, par. 16.

The Hearing Officer conducted a prehearing conference with the parties (GPS, DOE, BPS and SPS) on January 9, 2002. At the prehearing conference, DOE’s attorney stated (and she subsequently confirmed in a February 4, 2002 letter to GPS’s attorney, Exhibits DOE-1, GPS-2) the following:

1. DOE’s determination letter of June 13, 2002 that GPS is solely programmatically and fiscally responsible for Student’s educational placement was erroneous in that it did not take into account the fact that Student is in custody of DSS.

2. Pursuant to 603 CMR 28.02(16) and 28.03(4)(b), the school district where Student’s father (hereafter, Father) and Student’s mother (hereafter, Mother) lived are jointly programmatically and fiscally responsible for his educational placement. Thus GPS, as the school district where Father lives, would share programmatic and fiscal responsibility with the school district where Mother lives.

For purposes of this appeal, I therefore take DOE’s position to be DOE’s Determination Finding dated June 13, 2001 (Stipulation Attachment # 2) as amended by DOE attorney’s letter dated February 4, 2002 (Exhibits DOE-1 and GPS-2).

STATEMENT OF THE EVIDENCE

Stipulations of the Parties .

The parties stipulated, in writing, to the following 19 paragraphs:

1. Student (d.o.b. 9-23-85) is an individual with disability as defined by the Individuals with Disabilities Education Act and M.G.L. ch. 71B.

2. On or about November 1,1993, Student’s parents signed a stipulation in Probate and Family Court. The parents stipulated that, with regard to Student, they would have joint legal custody, Student’s father would have physical custody, and Student’s mother would have reasonable visitation rights.

3. On or about January 28, 1997, Student’s parents entered into a Voluntary Placement Agreement with the Department of Social Services (“DSS”) with regard to the Student.

4. On or about January 28, 1997, DSS arranged and paid for Student to live at The Lakeside School (“Lakeside”). Prior to this date, Student had been attending Lakeside as a day student pursuant to an Individualized Education Plan (“IEP”) written by the Georgetown Public Schools (“Georgetown”). The Lakeside School is a private school approved to provide services to publicly-funded students.

5. On or about August 13, 1997, Probate and Family Court Judge Edward J. Rockett issued the attached judgment of divorce nisi relative to Student’s parents.

6. In May 1998, Georgetown wrote an IEP for the period May 1998 to May 1999 that proposed Student’s continued placement as a day student at Lakeside, with DSS continuing to fund the residential portion of his placement there.

7. On or about March 17, 1999, the DSS social worker assigned to Student’s case signed an affidavit that attested to the fact that DSS was requesting custody of the Student.

8. On or about April 16, 1999, DSS filed a motion in Probate and Family Court seeking temporary custody of the Student.

9. In May 1999, Georgetown wrote an IEP for the period May 1999 to May 2000 that proposed Student’s continued placement as a day student at Lakeside, with DSS continuing to fund the residential portion of his placement there.

10. On or about July 14,1999, Probate and Family Court Judge Mary McCauley Manzi ordered that DSS was responsible for the care and custody of Student.

11. Beginning on or about September 7, 1999 and continuing to date, DSS has arranged and paid for Student to live at the Hillcrest Educational Centers, Inc./High Point School, where Student receives his special education services. The Hillcrest Educational Centers, Inc./High Point School is a private school approved to provide services to publicly-funded students.

12. On or about July 13, 2000, Nicholas LaMela, the DSS social worker assigned to the Student’s case, filed a SPED 766-7 form seeking a determination from the Massachusetts Department of Education (“DOE”) of school district responsibility for Student’s placement.

13. On or about May 4, 2001, the Hillcrest Educational Centers, Inc./High Point School sent DOE’s LEA assignment office information regarding Student and his parents.

14. On or about June 13, 2001, DOE issued the attached determination finding that Georgetown is solely programmatically and fiscally responsible for Student’s special education program.

15. On or about June 27, 2001, Georgetown received a copy of DOE’s June 13, 2001 determination.

16. On or about July 24,2001, Georgetown requested that the Bureau of Special Education Appeals review the June 13, 2001 determination.

17. Student’s father has lived in Georgetown, Massachusetts at all relevant times.

18. According to DSS records, Student’s mother has lived at the following addresses since January 28, 1997 to present:

1. January 28, 1997 to July 15, 1997 – 20 Larch Rd., Georgetown, MA.

2. July 15, 1997 to November 19, 1997 – 6 Elliot Place, Peabody , MA.

3. November 19, 1997 to April 2, 1998 – 26 Purchase St., Danvers, MA.

4. April 2, 1998 to May 6, 1998 – 14 Jordan St., Beverly, MA.

5. May 6, 1998 to July 14, 1999 – 12 Nelson Ave., Beverly, MA.

6. July 14, 1999 to November 13, 2000 – 20 Liberty Hill Ave., Salem, MA.

7. November 14,2000 to present – 3 Northend Ave., Salem, MA.

19. Student has lived in residential facilities at all relevant times.

Attached to the parties’ written stipulation are the following two documents:

· Judgment of Divorce Nisi relative to Student’s parents, issued Probate and Family Court Judge Edward J. Rockett on August 13, 1997 (referenced hereafter as Stipulation Attachment # 1). The Judgment provides, in part, that DSS shall retain custody of Student.

· Determination Finding issued by DOE and dated June 13, 2001, assigning programmatic and fiscal responsible for Student’s special education program solely to Georgetown (referenced hereafter as Stipulation Attachment # 2).

In addition, at the Hearing, the parties stipulated to the following (referenced hereafter as Oral Stipulations):

1. During all times relevant to this dispute (September 7, 1999 through the present), Student was under the care and custody of DSS.

2. During all times relevant to this dispute (September 7, 1999 through the present), neither Father nor Mother had either legal custody or physical custody of Student.

3. In July 1999, Student moved from Beverly to Salem. She has continued to live in Salem through the present.

4. DSS has paid for and is continuing to pay for the residential portion of Student’s current special education program.

Additional Evidence .2

· Mother’s revised affidavit dated March 27, 2002 provides that on or about November 2, 1993, Mother moved out of the marital residence (28 Linden Circle, Georgetown) and moved into her uncle’s home (20 Larch Road, Georgetown). She explains that although she no longer sleeps at her uncle’s home in Georgetown, it is the address used on her license, she is registered to vote and has voted in Georgetown, she receives mail there, and she considers herself a Georgetown resident. Exhibits SPS-1, par. 6; and BPS-D, par. 6.

In July 1999, Mother moved from Beverly (12 Nelson Road) to Salem (20 Liberty Hill Avenue). On or about November 2000, she moved to a different location within Salem (3 Northend Avenue) where she continues to live. Exhibit SPS-1, par. 10.

· Father’s affidavit dated March 27, 2002 provides that Student has not visited with Father at Father’s address in Georgetown since Student began living at the Hillcrest Educational Centers, Inc./High Point School. Exhibit GPS-3.

· Team meetings were held by Georgetown on April 16, 1999 and May 3, 1999. Father (but not Mother) attended these meetings. Exhibit BPS-H. On May 4, 1999, GPS sent the IEP to Father only. Exhibit BPS-I.

FINDINGS AND CONCLUSIONS

Student is an individual with a disability, falling within the purview of the Individuals with Disabilities Education Act (IDEA)3 and the state special education statute.4 Neither his status nor his entitlement is in dispute.

The issue presented is which school district(s) have programmatic and/or fiscal responsibility for Student’s special education and related services for the time period of September 7, 1999 through the present.

I note at the outset, that the location of a residential educational placement does not constitute the Student’s residence for purposes of determining school district responsibility in the present dispute.5 None of the parties argues otherwise.

A. DOE Regulatory Standards .

Pursuant to Massachusetts special education regulations, DOE has the authority to assign a school district responsibility for a child’s special education and related services. DOE may assign (or a school district or an agency may request assistance in assigning) a city, town or school district as the parent’s district when a parent’s residence or history is in dispute or when the student is not receiving services.6

The DOE regulations provide that the parent’s school district has both programmatic and financial responsibility when an eligible student requires an out of district placement in order to implement student’s IEP and the student receives special education services at an approved special education residential school.7

The term “parent’s school district” is defined by the DOE regulations, in relevant part, as follows:

[I]f 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 without regard to the parent’s custody status.8

It is not disputed that during the time period in question, Student has required an out of district placement, that he has been placed in an approved residential placement and that he has been within the care or custody of DSS. A straightforward reading of the above-described regulatory framework therefore leads to the conclusion that programmatic and fiscal responsibility for Student’s educational placement should be shared equally by the city or town where Father has lived and the city or town where Mother has lived. This is the position of GPS and DOE.

BPS and SPS disagree. They take the position that, at least with respect to the particular facts of the present dispute, the above-referenced regulatory standards are unlawful and should not be implemented.

B. Argument of BPS and SPS based on Walker Home for Children Decision .

BPS’s and SPS’s argument, essentially, is that Mother (as well as the school districts where she has lived) have not had such contact or connection with Student that could justify their being found responsible for Student’s special education and related services.

BPS and SPS note that neither of their school districts has been involved in planning or paying for the education of Student, Student has not visited Mother in Beverly or Salem, much less lived there. BPS and SPS also note that Father was the last parent to have physical custody of Student before Student came under the care and custody of DSS. The facts in evidence are not inconsistent.

On or about November 1, 1993, Student’s parents signed a stipulation in Probate and Family Court. The parents stipulated that, with regard to Student, they would have joint legal custody, Student’s father would have physical custody, and Student’s mother would have reasonable visitation rights. Stipulation, par. 2.

In May 1999, Georgetown wrote an IEP for the period May 1999 to May 2000 that proposed Student’s continued placement as a day student at Lakeside, with DSS continuing to fund the residential portion of his placement there. Stipulation, par. 9.

Team meetings were held by Georgetown on April 16, 1999 and May 3, 1999. Father (but not Mother) attended these meetings. Exhibit BPS-H. On May 4, 1999, GPS sent the IEP to Father only. Exhibit BPS-I.

Mother has not had physical or legal custody during times relevant to this dispute. Stipulation, par. 10; Oral Stipulation 2.

BPS and SPS argue the significance of these facts in light of Walker Home for Children v. Franklin.9 In Walker, the Massachusetts Supreme Judicial Court addressed the assignment of the school district responsible for the special education of a child. The Court’s decision concluded that the assignment of the responsible school district must be determined on the basis of the child’s residence.10

In Walker , the parents were divorced and living in separate school districts. The mother who lived in Milford had physical custody of her two children. The children attended residential school in neither mother’s nor father’s school district. The children visited their father where he lived (Franklin), but the children did not live there.

The Court explained that the residence of a minor child generally is the same as the parent with physical custody, and determined that the children’s residence was that of their mother. The court further concluded that DOE “exceeded its authority when it assigned responsibility to Franklin for the costs of the special education of two boys, who do not reside there.”11 Mother’s school district (Milford) was therefore solely responsible for the children’s special education.

BPS and SPS argue that the Walker decision, as applied to the facts of the present dispute, requires the following findings: (i) school district responsibility follows the child’s residence, (ii) the Mother’s lack of any involvement with Student (as well as the lack of involvement by BPS and SPS) require that Mother’s living in Beverly and Salem not be determinative of the child’s residence, (iii) the child’s residence is that of Father who had physical custody, and (iv) pursuant to MGL c. 71B, DOE therefore may only assign school district responsibility in the present controversy on the basis of Father’s residence in Georgetown and DOE has no authority to assign school district responsibility on the basis of Mother’s living in Beverly or Salem.

C. Student within the Custody of the Department of Social Services (DSS) .

On or about July 14, 1999, Probate and Family Court Judge Mary McCauley Manzi ordered that DSS was responsible for the care and custody of Student. Stipulation, par. 10. At the Hearing, the parties agreed that during all times relevant to this dispute (September 7, 1999 through the present), Student has been under the care and custody of DSS and that neither Father nor Mother has had either legal custody or physical custody of Student. Oral Stipulations 1 and 2.

For the reasons explained below, I find that these facts result in the Walker decision not being dispositive of the present dispute.

As noted above, the Walker decision explained that, under G. L. c. 71B, school district responsibility must follow the student’s residence , and therefore DOE’s “authority with respect to the assignment of fiscal responsibility is limited to the question of determining where a child resides.”12 Walker further explained that the residence of a minor child “generally is the same as the domicil [sic] of the parent who has physical custody of the child.”13

In the present dispute, DSS has had care and custody of the child, and neither parent has had physical custody during the time period in question. The present dispute therefore involves determination of a child’s residence where the usual rule for determining the child’s residence (based on the residence of the parent who has physical custody) no longer applies.

The Walker decision noted the role of DOE in establishing regulatory standards in these kinds of situations. Walker stated that DOE has been given the authority under MGL c. 71B, s.3, to adopt regulations in order to resolve the issue of residence “in situations in which a child’s legal residence may be in some doubt.”14 And, a child’s residence “is not so obviously self-defining when considerations such as split families, guardianships, children living with foster parents, relatives or friends, and institutionalized children enter the picture.”15

The fundamental principle encapsulated within the DOE regulations relevant to this dispute is that whenever a child is within DSS custody, the school districts of the two parents must jointly share responsibility without regard to a parent’s custody status.16 Through its regulations, DOE has determined that the fact of DSS care and custody of a child changes the usual manner of determining the child’s residence.

Implicit within the DOE regulatory standard is a policy determination that it is best simply to allocate responsibility jointly between the parents’ two school districts when DSS has custody and parents are living apart. I can identify nothing within Walker or special education law that is inconsistent with a determination of Student’s residence (and therefore school district responsibility) in this manner when DSS has custody.

DOE’s regulations interpreting and implementing MGL c. 71B are entitled to “substantial deference.”17 They may be rejected if “contrary to the plain language of the statute and its underlying purpose.”18

I find that the DOE regulations provide reasonable standards for determining school district responsibility when parents are separated and the child is within DSS custody. I further find that these regulatory standards are consistent with MGL c. 71B and its underlying purpose.

The reasonableness of the DOE regulatory standards is underscored by a review of possible alternative rules that DOE might have established for the assignment of school district responsibility when a child is under the care and custody of DSS, keeping in mind that school district responsibility must follow a determination of the child’s residence.

Perhaps the most logical alternative rule would be for DOE to seek to allocate responsibility by comparing the nature and extent of the involvement of each parent with respect to the child. The difficulty of such a rule is seen through the facts of the present dispute in which neither parent has physical or legal custody, the child is living at a residential school in a third school district, and the child has not visited either the Father in his home in Georgetown or the Mother in her home in Beverly or Salem during the times relevant to this dispute. Exhibits SPS-1, BPS-D, GPS-3. In other words, there is virtually nothing in the facts that would allow one to make an authoritative determination that either the Mother’s or the Father’s residence should be Student’s residence for purposes of school district responsibility. And, it is conceded by all parties that Student’s own place of residence in a third school district is not relevant for these purposes.19

A second alternative rule that might be used by DOE, and the one urged by BPS and SPS, is to assign school district responsibility on the basis of which parent last had physical custody of the child. Because school district responsibility must follow the child’s residence, this proposed rule would essentially have DOE assign responsibility on the basis of the child’s previous residence (when the parent actually had physical custody).

The difficulty of this position is that there is nothing that BPS or SPS can point to within the state education statute or within case law which supports the proposition that a child’s residence should be determined solely on the basis of his or previous residence. To the contrary, state education law is clear that school district responsibility is assigned on the basis of where someone is presently living. For example, the so called “move-in” law (discussed below in part E of this Decision) explains how school district responsibility shifts on the basis of a parent’s move from one school district to another. Similarly, the school attendance law (discussed below in part D of this Decision) assigns school district responsibility on the basis of the city or town where a parent is presently living. Moreover, even if one were to assume the appropriateness of assigning responsibility on the basis of a parent’s previous physical custody of Student, such a rule would likely become more and more suspect over the passage of time.

I conclude that responsibility must be assigned pursuant to the DOE regulatory standards: “district(s) where the parent(s) are living or were last known to be living without regard to the parent’s custody status.”20

D. Legal Residence or Physical Presence .

BPS and SPS argue that in determining “where the parent(s) are living or were last known to be living”,21 parent’s legal residence is dispositive, even if the parent’s legal residence is different than the place where the parent is actually residing. Legal residence generally requires both physical presence and intent to remain.22 BPS and SPS argue that although Mother has actually lived in both Beverly and Salem, she has maintained her legal residence in Georgetown at all times relevant to this dispute, thereby making Georgetown solely responsible for Student’s special education.23

I disagree with this interpretation of the DOE regulatory standards for the following reasons.

The state special education statute requires each city and town to “identify the school age children residing therein who have a disability, . . . propose a special education program to meet those needs, provide or arrange for the provision of such special education program . . . .”24

A federal District Court (in Massachusetts) has interpreted the word “reside” as used in the state special education statute and the word “live” as used in previous DOE regulations to be identical with respect to a determination of the residence of a special education student. The Court concluded that both terms mean physical presence (where someone actually lives), rather than legal residence. The Court explained: “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.”25

Similarly, the special education “move-in” law (discussed below in part E of this Decision) adjusts fiscal responsibility of a city or town for a student’s special education if the parent “moves to a different school district.” Pursuant to this statute, fiscal responsibility depends on the place where a parent is actually living.

In addition, I note that the Massachusetts school attendance law (for all students) provides that a child has the right to attend the public schools in the city or town where he or she “ actually resides ”.26 This law allows no latitude for an argument that legal residence, as compared to actual residence, should control school district responsibility.

These statutory provisions support the conclusion that the DOE regulations may appropriately condition school district responsibility upon the place where a parent is living, rather than legal residence.

DOE regulatory standards, applicable when a child is within DSS care and custody, provide for responsibility to be assigned to the “district(s) where the parent(s) are living or were last known to be living without regard to the parent’s custody status.”27 For the above-stated reasons, I conclude that the use of the word “living” should be interpreted consistent with its plain meaning – that is, where someone is actually living (physical presence).

Therefore, I find that school district responsibility in the present dispute should be determined on the basis of where Mother and Father are actually living during the time period in question, rather than their legal residence, subject to the Massachusetts “move-in” law discussed below.28

E. Application of the “Move-in” Law .

Massachusetts’ so-called “move-in” law (MGL c. 71B, s. 5) provides, in relevant part, that if a parent moves from one school district to another on or after July 1 of any fiscal year, the former school district bears fiscal responsibility for a residential placement for the remainder of that fiscal year. This law therefore provides an exception to the general principles described above, which assign responsibility on the basis of the city or town where parents currently are living.

GPS has initiated the instant proceeding for the purposes of appealing assignment of responsibility from September 7, 1999 through the present. The importance of this date is that beginning on or about September 7, 1999 and continuing through the present, DSS has arranged and paid for Student to live at the Hillcrest Educational Centers, Inc./High Point School, where Student receives his special education services. The Hillcrest Educational Centers, Inc./High Point School is a private residential school approved to provide services to publicly-funded students. Stipulation, pars. 11 and 19.

There is no dispute that Father has lived in Georgetown at all relevant times. Stipulation, par. 17. From September 7, 1999 through the present, Mother has been living in Salem. Stipulation, par. 18; Exhibits SPS-1, par. 10 and BPS-D, par. 10 (Mother’s revised affidavit); Oral Stipulation 3.

However, Mother moved to Salem from Beverly in July 1999. Stipulation, par. 18; Exhibit SPS-1, par. 10 (Mother’s revised affidavit); Oral Stipulation 3. Because Mother moved on or after July 1, Beverly (rather than Salem) bears fiscal responsibility pursuant to the “move-in” law during the fiscal year July 1, 1999 through June 30, 2000.

For these reasons, I find that application of the “move-in” law to the above-discussed DOE regulatory standards leads to the following results: (i) from September 7, 1999 through June 30, 2000, Georgetown and Beverly had joint fiscal responsibility for Student’s special education and related services; (ii) from September 7, 1999 through June 30, 2000, Georgetown and Salem had joint programmatic responsibility for Student’s special education and related services; and (iii) from July 1, 2000 through the present, Georgetown and Salem have joint fiscal and programmatic responsibility for Student’s special education and related services.

Finally, I recognize the potential unfairness to BPS and SPS of my Decision in that these school districts had no earlier opportunity to do fiscal planning, or to consider or propose alternative special education services with respect to Student. Superior Court Judge Botsford noted a similar unfairness in a matter involving contested school district responsibility. She concluded, as do I, that although unfortunate, the lack of notice to a school district within this context cannot justify a different assignment of school district responsibility.29

ORDER

DOE’s Determination Finding dated June 13, 2001 (Stipulation Attachment # 2) as amended by DOE attorney’s letter dated February 4, 2002 (Exhibits DOE-1 and GPS-2) is AFFIRMED.

From September 7, 1999 through June 30, 2000, Georgetown and Beverly had joint fiscal responsibility for Student’s special education and related services.

From September 7, 1999 through June 30, 2000, Georgetown and Salem had joint programmatic responsibility for Student’s special education and related services.

From July 1, 2000 through the present, Georgetown and Salem have joint fiscal and programmatic responsibility for Student’s special education and related services.

By the Hearing Officer,

William Crane

Dated: April 5, 2002

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

EFFECT OF BUREAU DECISION AND RIGHTS OF APPEAL

EFFECT OF DECISION AND RIGHTS OF APPEAL

The decision of the Bureau of Special Education Appeals is final and is not subject to further agency review. Because 20 U.S.C. s. 1415(i)(1)(B) requires the Bureau decision to be final and subject to no further agency review, the Bureau cannot permit motions to reconsider or to re-open a Bureau decision, once it is issued. Any party aggrieved by the Bureau decision may file a complaint in the Superior Court of competent jurisdiction or in the District Court of the United States for Massachusetts for review of the Bureau decision. 20 U.S.C. s. 1415(i)(2). Under Massachusetts General Laws, Chapter 30A, Section 14(1), appeal of a final Bureau decision must be filed within 30 days of receipt of the decision.

Except as set forth below, the final decision of the Bureau must be implemented immediately. Under G.L. c. 30A, s. 14(3), appeal of the decision does not operate as a stay; rather, a party seeking to stay the decision of the Bureau must seek such stay from the court having jurisdiction over the party’s appeal.

Under the provisions of 20 U.S.C. s. 1415(j), “unless the State or local education agency and the parents otherwise agree, the child shall remain in the then-current educational placement,” during the pendency of any judicial appeal of the Bureau decision, unless the child is seeking initial admission to a public school, in which case “with the consent of the parents, the child shall be placed in the public school program,” 20 U.S.C. s. 1415(j). Therefore, where the Bureau has ordered the public school to place the child in a new placement, and the parents or guardian agree with that order, the public school shall immediately implement the placement ordered by the Bureau. School Committee of Burlington, v. Massachusetts Department of Education , 471 U.S. 359 (1985). Otherwise, a party seeking to change the child’s placement during the pendency of judicial proceedings, must seek a preliminary injunction ordering such a change in placement from the court having jurisdiction over the appeal. Doe v. Brookline , 722 F.2d 910 (1st Cir. 1983); Honig v. Doe , 484 U.S. 305 (1988).

RECORD OF THE HEARING

The Bureau of Special Education Appeals will provide an electronic verbatim record of the hearing to any party, free of charge, upon receipt of a written request. Pursuant to M.G.L. c.30A, ss. 11(6) and 14(4), an appealing party seeking a certified written transcription of the entire proceedings, must arrange for the transcription, or portion thereof, by a certified court reporter, at his/her own expense. Transcripts prepared by the party must then be submitted to the Bureau of Special Education Appeals with appropriate court reporter certification for final review and certification. A party unduly burdened by the cost of preparation of a written transcript of the sound recordings may petition the Bureau of Special Education Appeals for relief.

COMPLIANCE

A party contending that a decision of the BSEA is not being implemented may file a complaint with the Department, whose responsibility it shall be to investigate such complaint. 603 CMR s. 28.00, par. 407.0.

In addition, the party shall have the option of filing a motion with the Bureau of Special Education Appeals, requesting the Bureau to order compliance with the decision. The motion shall set out the specific area of alleged non-compliance. The Hearing Officer may convene a hearing at which the scope of inquiry will be limited to facts bearing on the issue of compliance, facts of such nature as to excuse performance and facts bearing on a remedy. Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief and refer the matter to the Legal Office of the Department of Education for enforcement.

CONFIDENTIALITY

In order to preserve the confidentiality of the child involved in these proceedings, when an appeal is taken to Superior Court or to Federal District Court, the parties are strongly urged to file the complaint without identifying the true name of the parents or the child, and to move that all exhibits, including the transcript of the hearing before the Bureau of Special Education Appeals, be impounded by the court. See, Webster Grove School District v. Pulitzer Publishing Company , 898 F.2d 1371 (8th Cir. 1990). If the appealing party does not seek to impound the documents, the Bureau of Special Education Appeals, through the Attorney General’s Office, may move to impound the documents.

NOTICE OF REVISED BUREAU PROCEDURES

ON RECONSIDERATION/REHEARING

The United States Department of Education, Office of Special Education Programs (OSEP) in its 1990 Monitoring Report, issued July 17, 1991, ordered the Bureau to amend its procedures to eliminate the availability of reconsideration or re-opening as post-decision procedures in the Bureau cases. Accordingly, parties are notified that the Bureau will not entertain motions for reconsideration or to re-open. Bureau decisions are final decisions subject only to judicial review.

In addition, parties should be aware that the federal Courts have ruled that the time period for filing a judicial appeal of a Bureau decision is thirty (30) days, as provided in the Massachusetts Administrative Procedures Act, M.G.L. c.30A. See, Amann v. Town of Stow , 991 F.2d 929 (1 st Cir. 1993); Gertel v. School Committee of Brookline , 783 F. Supp. 701 (D. Mass. 1992). Therefore, an appeal of a Bureau decision to state superior court or to federal district court must be filed within thirty (30) days of receipt of the Bureau decision by the appealing party.


1

BPS initially submitted, as Exhibit D, an affidavit of Mother dated March 20, 2002. At the Hearing, Beverly substituted, for this affidavit, Mother’s revised affidavit dated March 27, 2002 which was also submitted by Salem as its only exhibit.


2

In light of the extensive stipulations agreed to by all parties and the limited dates during which responsibility for Student is at issue, only a relatively small part of the additional evidence is referenced within this Decision.


3

20 USC 1400 et seq .


4

MGL c. 71B.


5

Walker Home for Children v. Franklin , 416 Mass. 291, 296 n. 8 (1993) (“municipality is not relieved of its responsibility for a special needs student because that student participates in a special education program in a residential setting elsewhere”); 603 CMR 28.02(20).


6

603 CMR 28.03(4)(f).


7

603 CMR 28.03(4)(b).


8

603 CMR 28.02(16).


9

416 Mass. 291, 621 NE2d 376 (1993).


10

Id . at 296-297.


11

Id . at 297.


12

Id . at 296-297 (citations omitted).


13

Id. at 295 (emphasis supplied) (citations omitted).


14

Id . at 296 (citations omitted).


15

Id . (internal quotations and citations omitted).


16

603 CMR 28.02(16) and 28.03(4)(b).


17

Massachusetts Hospital Association v. Department of Medical Security , 412 Mass. 340, 345 (1992); Emerson Hospital v. Rate Setting Commission , 408 Mass. 785, 788 (1990); Massachusetts Medical Society v. Commissioner of Insurance , 402 Mass. 44, 62 (1988).


18

Massachusetts Hospital Association v. Department of Medical Security , 412 Mass. 340, 346 (1992).


19

See footnote 5 and accompanying text of this Decision.


20

603 CMR 28.02 (16).


21

Id.


22

Martinez v. Bynum , 461 U.S. 321, 330 (1983); Catlin ex re. Catlin v. Sobel , 24 IDELR 767, 771 (2 nd Cir. 1996); Rummel v. Peters , 314 Mass. 504, 51 N.E.2d 57, 62 (1943); Tuelle v. Flint , 283 Mass. 106, 186 N.E.2d 222, 223 (1933).


23

BPS and SPS have presented factual evidence that in certain respects supports their argument that Mother’s legal residence has continued to be Georgetown. Exhibit SPS-1. However, for purposes of this Decision, I need not (and therefore decline to) determine Mother’s place of legal residence.


24

MGL c. 71B, s. 3, par. 1.


25

Doe v. Anrig , 1986-87 EHLR DEC 558:278, No. 81-1731-T (U.S. Dist. Ct., D.Mass. January 15, 1987). See also 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).


26

MGL c. 76, s. 5 (emphasis supplied).


27

603 CMR 28.02 (16) (emphasis supplied).


28

Application of previous DOE regulations (which were in effect until September 2000) would lead to the same result. See 603 CMR 202.1(c) (children who are at a private residential school are the responsibility of the city or town where mother or father lives) and 603 CMR 202.1(g) (when child’s mother and father live in two different school districts, the two school districts are jointly responsible). At the Hearing, all of the parties agreed that although these earlier regulations use different language than the current regulations, the analysis and arguments are the same.


29

School Committee of Stoneham v. Robert Antonnucci , Superior Court CA No. 92-5899, nn. 18 and 19 and accompanying text (April 26, 1996).


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