Student and Lowell Public Schools – BSEA #02-2885



<br /> Student and Lowell Public Schools – BSEA #02-2885<br />

COMMONWEALTH OF MASSACHUSETTS

Bureau of Special Education Appeals

In Re: Student and Lowell Public Schools

BSEA #02-2885

_____________________

RULING ON MOTIONS OF STUDENT AND LOWELL PUBLIC SCHOOLS TO JOIN THE MASSACHUSETTS DOC AND DOE, AND MOTION OF LOWELL PUBLIC SCHOOLS TO JOIN HAVERHILL PUBLIC SCHOOLS, AS NECESSARY PARTIES

Introduction

Student1 filed this BSEA appeal to obtain special education services while he was incarcerated in state prison. Student also seeks compensatory services covering his tenure both in state prison and, prior to that, in a county house of correction and other locations.

Student and the Lowell Public Schools (Lowell), seek to join the Massachusetts Department of Corrections (DOC) and the Massachusetts Department of Education (DOE) as necessary parties. In addition, Lowell seeks to join the Haverhill Public Schools (Haverhill). For reasons stated below, the motions of Student and Lowell to DOE is GRANTED. Student and Lowell’s Motion to Join DOC, and Lowell’s Motion to Join Haverhill are DENIED without prejudice.

Procedural History

On February 6, 2002 Student filed a BSEA hearing request that asserts, among other things, that he has been deprived of FAPE while in the custody of DOC as well as during various periods of incarceration at the Essex Count House of Corrections (HOC).

On February 16, 2002, the Student and Lowell negotiated an interim agreement (Interim Agreement) for Lowell to provide Student with tutoring while he is in DOC custody, and for Lowell to evaluate Student and develop an IEP for him.

On May 3, 2002, Lowell filed a Motion to join the Haverhill Public Schools (Haverhill). Haverhill filed an initial opposition to Lowell’s Motion on May 13, 2002. On May 31, 2002, in two joint motions, the Student and Lowell moved to join both DOE and DOC as necessary parties. DOC and DOE filed timely oppositions. Oral argument on the joint motions to join DOE and DOC, as well as Lowell’s motion to join Haverhill, took place on June 18, 2002. The parties and potential parties were given until June 28, 2002 to file supplemental memoranda, and Student, DOE, Lowell and Haverhill did so.

In addition to the June 18, 2002 motion session, there have been several telephone conferences with the parties, potential parties, and hearing officer. The most recent such telephone conference took place on February 4, 2003.

Facts .

Based on the parties’ and potential parties’ written submissions, as well as on factual representations of counsel that are not significantly disputed, I make the following findings of fact, for purposes of this Ruling only:

1. Student is twenty years old. Student’s mother lives in Lowell. His father is deceased. Student is not under guardianship, and no evidence has been presented that he has delegated educational decision-making authority to his mother or any other person.

2. Student has documented disabilities that impair his academic, social, emotional and behavioral functioning and has been a special education student for much or most of his school career. No one disputes Student’s past or current disability status or his eligibility for special education and related services.

3. Until some time during the 1998-1999 school year, Student, who had not yet turned 18, was enrolled in the Haverhill Public Schools based on his parent’s residence in Haverhill. In 1997, Haverhill issued an IEP placing Student in an extended year residential program at the Wreath School in Middleton, MA. The placement was cost-shared with DYS. In 1997 or 1998, Student’s mother moved to Lowell after separating from his father, who moved to California. In the spring of 1998, Student received an IEP extending the Wreath placement from April 28, 1998 to April 28, 1999. The copy of the 1998-1999 IEP that the parties filed in this appeal indicates that the IEP was issued by Haverhill, but lists a Lowell address for Student’s mother, and does not bear the signature of a representative of any school district. This was the last IEP written for Student before his hearing request.

4. In mid-October 1998 Student enrolled in the Lowell Public Schools, but remained in his residential placement at Wreath. Lowell started the evaluation process with Student in late 1998. The Student has never attended a public educational program in Lowell.

5. Between February and April 1999, Student left Wreath and moved in with his mother in Lowell. Between the time he left Wreath and the time he was incarcerated as discussed below, Student did not attend school or receive educational services.

6. On or about April 7, 1999, Student left2 his mother’s home in Lowell, and went to stay with his father in California. Lowell learned of this move around the time it took place. Student stayed in California for about three months, and returned to Massachusetts on or about July 1, 1999. Student had turned 18 on June 15, 1999. Student’s father died at some time after Student left California.

7. During July and part of August 1999, Student slept at an uncle’s apartment in Haverhill.

8. From August 10 to August 18, 1999, Student was hospitalized on the psychiatric unit of Holy Family Hospital in Methuen. On or about August 30 and/or 31, 1999, Student stayed at Mitch’s Place, a homeless men’s shelter in Haverhill. On or about September 1, 1999, he was re-admitted to Holy Family. He was discharged on or about September 9, 1999 and returned to Mitch’s Place for about one more night. According to information now available, Student did not return to his uncle’s home after the first hospitalization, and it is unclear where he stayed when he was not at the hospital or homeless shelter.

9. From mid-September to mid- December of 1999, Student entered a cycle of bouncing back and forth between hospital psychiatric units and the Essex HOC.3

10. In mid-December 1999, Student was sentenced to 77 days at the Essex HOC. During his sentence, he was sent to Taunton State Hospital for a brief period. Upon release from the HOC, in the spring of 2000, Student immediately resumed the cycle of hospitalization, re-arrest upon discharge, and re-incarceration in the HOC until December 2000, when he entered DOC custody.

11. Hospital admission records and arrest records from August 10, 1999 forward, submitted with Lowell’s Motions, list two Haverhill addresses for Student: his uncle’s apartment and Mitch’s Place (homeless shelter). Miscellaneous notes in medical records submitted by the parties indicate that Student reported staying with his mother in Lowell for a few days, sleeping under bridges in Haverhill, and occasionally staying with a girlfriend in an unspecified city or town. No party has submitted a lease or rental agreement, utility bill, evidence of mail delivery to a particular address, or a census form or voter list indicating where Student lived. Student’s affidavit states that he had no permanent residence after leaving the Wreath School.

12. In approximately December 2001, Student entered DOC custody. His first placement was at a medium security unit at MCI Shirley. In or about April 2002, Student was transferred to a more secure facility at MCI Cedar Junction. For at least some of his time there, Student was in a highly restrictive disciplinary unit.

13. On or about January 4, 2003, Student was discharged from DOC custody. According to the representation of Student’s and Lowell’s counsel, Student has been sleeping at the homes of friends, at least some of whom live in Haverhill.

14. Pursuant to the interim agreement of February 16, 2002, referred to above, Lowell attempted to evaluate Student and provide him with tutoring services while he was in DOC custody. However, Lowell was unable to fully and/or timely implement this Interim Agreement because of restrictions imposed by DOC rules and/or procedures, especially when Student was in the disciplinary unit. Specifically, Lowell’s tutors and/or evaluators could not meet with Student in the disciplinary unit until they had undergone background checks, and evaluators could not meet alone in the same room as Student while he was in that unit. This left Student without services for periods at MCI-Cedar Junction because there was no person or agency other than Lowell available to provide services; DOC had laid off the teacher it had employed in-house, and DOE does not appear to have had a presence at Cedar Junction.

15. The record is not clear as to whether Student received special educational services while he was incarcerated at Essex HOC. DOE asserts that Student spent much of his stay at the HOC in segregation or the infirmary, where HOC rules prohibited educational services, and that when Student was not in those settings, he refused to participate in educational programming that was offered. DOE has not supported this assertion with documents or affidavits, and Student has submitted no evidence to the contrary.

16. On January 7, 2003, Student reported, through counsel, that he had been discharged from DOC custody on January 4, 2003, and had spent the night at one or more friends’ homes in Haverhill. In a subsequent teleconference on February 4, 2003, Student reported, again via counsel, that he currently is in Haverhill and wishes to pursue educational services there.

17. From the time of the hearing request to date. the current and potential parties have worked cooperatively to try to provide Student with services. despite the legal and practical issues that led to this appeal. In so doing, none of the parties or potential parties has waived or conceded any legal claims or defenses.

Positions of the Parties and Potential Parties

1. Student and Lowell’s arguments for joining DOC and DOE

DOC: Student and Lowell state that DOC has imposed various barriers and restrictions4 that precluded Lowell from fully and timely complying with the interim agreement, and, therefore, from providing Student with FAPE. Therefore, to resolve the issues in this case, the BSEA must take jurisdiction over the DOC.

DOE: Student and Lowell assert that under federal and state law, DOE is responsible for ensuring that Student receives FAPE while he is in DOC custody, and was jointly responsible, with Student’s LEA, for ensuring that Student received FAPE at the Essex HOC. Unless DOE is a party, any claims Student might raise as to services while he was in DOC or HOC custody cannot be resolved. Finally, Student asserts that DOE has failed to meet its obligations under the “child find” provisions of the IDEA and G.L. c. 71B to ensure that incarcerated eligible students such as Student are located, identified and evaluated.5

2. Opposition of DOC and DOE to Joinder

DOC’s opposition : DOC explicitly acknowledges Student’s entitlement to special education services while an inmate, and states steps it would take to accommodate service delivery. DOC further states, however, that since negotiation of the interim agreement, Student was reclassified and moved from a medium to maximum security facility. As a result, penological and security concerns affected delivery of special education services; thus, until DOC determined the conditions for safe delivery of services, the joint Motion for Joinder of DOC was premature.

DOE’s opposition : DOE’s objection rests on the proposition that Student’s LEA, not DOE, is responsible for implementing the provisions of IDEA and G.L. c. 71B, including while Student was incarcerated, and that DOE’s general oversight responsibilities do not make it the guarantor of the LEA’s duties to Student. Therefore, giving DOE party status will not affect the relief to which Student might be entitled, as all duties, and thus all potential liability for breach of such duties, lie with the LEA. In any event, DOE asserts that it has fulfilled its responsibilities.

Thus, DOE contends that Student’s LEA, not DOE, was responsible for Student’s educational services at MCI-Cedar Junction. As for the Essex HOC, DOE asserts that its Bureau of Educational Services in Institutional Settings (ESIS) and Student’s LEA shared responsibility for Student’s educational services at the HOC, and that the school district was responsible in the first instance, with DOE obligated to provide only specific, enumerated services subject to appropriation and availability. DOE argues that it fulfilled those obligations because ESIS identified Student and offered him services at Essex HOC, which he refused. Any loss of educational services resulted from Student’s long tenure in segregation and the infirmary, as well as his refusing services that were offered.

Finally, DOE argues that primary responsibility for child-find activities lies with local school districts, and that DOE has performed its duty, which is to issue policies and exercise general oversight over districts’ compliance with child-find requirements.

3. Lowell’s position as to joinder of Haverhill

Lowell asserts that Student was not a resident of Lowell because at all relevant times, ( i.e ., since returning from California), he has been an adult capable of establishing his own residence, has held himself out as a resident of Haverhill, and actually lived there from July 1999 until December 2001, when he entered DOC custody. Under the child-find provisions of the IDEA and G.L. c. 71B, Haverhill (along with DOE) was responsible for identifying, locating and evaluating Student when he was in Haverhill. Student’s homelessness is immaterial, because under the McKinney Homeless Assistance Act, 42 USC 11431, (now the McKinney-Vento Homeless Assistance Act), he was entitled to educational services from the community in which he was homeless, i.e., Haverhill. For all of these reasons, Haverhill was programmatically and fiscally responsible for providing Student with FAPE before he entered DOC custody, or, at least, responsible under “child-find” to notify Lowell of Student’s presence in Haverhill. Further, because Student had established his own residence in Haverhill as an adult, Haverhill, and not his mother’s residence, was the responsible LEA during Student’s incarceration. Finally, it would be unfair to saddle Lowell with liability since Student had substantial ties with Haverhill and virtually none with Lowell, and Lowell argues that it had no notice that Student had even returned from California until so informed by Student’s counsel around December 2001.

4 . Haverhill’s and Student’s opposition to joining Haverhill

Haverhill argues that Student lacked sufficient ties to Haverhill during the period at issue to establish residency there. Rather, the parties’ submissions indicate that Student was only intermittently in Haverhill in between hospitalizations and jail terms, was not there long enough to be subject to child-find activities, and never established a residence apart from his mother. Under the applicable regulations and case law, Lowell, not Haverhill, as the last known residence of Student’s mother, is the responsible LEA during the relevant time period. Further, Haverhill argues, even if Student was a Haverhill resident before his incarceration, once he entered a correctional facility, operated either by DOC or Essex County, fiscal and programmatic responsibility reverted to Student’s mother’s community of residence, Lowell.

Student also opposes joining Haverhill as a party, arguing that after Student returned from California, he was not out of institutions long enough to establish a separate residence, apart from his mother.

CONCLUSIONS OF LAW

Legal Framework

1. Joinder, Generally

Rule 1F of the Massachusetts Hearing Rules for Special Education Appeals ( BSEA Hearing Rules ) grants a hearing officer authority to join a person or entity as a party to a BSEA proceeding in the following circumstances:
where complete relief cannot be granted among those who are already parties, or the person being joined has an interest relating to the subject matter of the case [such that]…the case cannot be disposed of in their absence. Factors in determination of joinder are: the risks of prejudice to the present parties; the range of alternatives for fashioning relief; the inadequacy of a judgment entered in the proposed party’s absence and the existence of an alternative forum to resolve the issues.” Id

Additionally, the current Chapter 766 regulations6 at 603 CMR 28.08(3) explicitly grant jurisdiction over state agencies to BSEA hearing officers in certain circumstances:

Bureau of Special Education Appeals: Jurisdiction . In order to provide for the resolution of differences of opinion among school districts, private schools, parents and state agencies, the [BSEA]…shall conduct mediations and hearings to resolve such disputes. The jurisdiction of the [BSEA] over state agencies, however, shall be exercised consistent with 34 CFR 300.142(a).7

Authority to order a state agency to provide services was granted to BSEA hearing officers by Ch. 159, Sec. 162 of the Acts of 2000, amending G.L. c. 71B, Sec. 3 (hereafter Section 162):

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 [DSS, DMR, DMH, DPH], or any other state agency or program, in addition to the program and related services to be provided by the school committee.

Id . Pursuant to the foregoing, BSEA hearing officers have addressed joinder of state agencies on numerous occasions. Rulings have turned on the facts and circumstances of each case. Thus, in Medford Public Schools , 7 MSER 74 (Crane, May 31, 2001) the hearing officer joined DMR as a party prior to the hearing on the merits, then, after hearing, ordered DMR to provide residential services to the student to enable her to attend her agreed-upon educational program, after finding that the evidence established that the student would not otherwise have access to FAPE. Id.

On the other hand, in Burlington Public Schools , 7 MSER 112 (Byrne, 2001), the hearing officer denied a school district’s motion to join DMH as a party because:

[T]he joinder of DMH was not necessary to resolve the dispute between the student and the school…The participation of DMH…would not alter the school’s current obligation to the student…There was no showing…that DMH has resources and services uniquely within its control that are necessary to secure or support an appropriate special education program…nor was there a showing that the Student requires services “in addition” to those [in] the…IEP. Id .

Here, in light of the principals set forth in the applicable statute and regulations, as illustrated by the decision and ruling referred to above, the state agencies, DOE and DOC, should be joined as parties if DOC and/or DOE has or had resources uniquely within their control that are necessary to secure or support an appropriate special education for Student, or if these agencies have duties or responsibilities with respect to providing Student with FAPE, or if for any other reason could not be resolved in their absence.

2. Joinder of State Agencies, DOE and DOC

Responsibility for special education in adult correctional facilities

Whether DOC and DOE should be joined as parties depends on their respective responsibilities, if any, for special education of eligible students in county HOCs or in DOC facilities.

Federal Law :

The parties do not dispute that the IDEA entitles Student to special education services while incarcerated in a DOC facility, although some services could be adjusted or limited for legitimate penological and security reasons if a student has been convicted as an adult. 20 USC Secs. 1401(25); 1412(a)(11)(B); 1414(d)(6)(A)-(B); 34 CFR 300.2(b)(1)(iv); 34 CFR 300.311(c); New Hampshire Department of Education; and New Hampshire Department of Corrections, v. City of Manchester, NH School District; and Marc Adams , 23 IDELR 1057 U.S.D.C. NH, 94-573-M (March 21, 1996).8 See also Unified School District No. 1. v. Ct. Dept. of Education, et al ., 780 A.2d 154; 35 IDELR 30 (CT App. Ct., 2001).

The IDEA does not differentiate between state and county facilities such as HOC’s in granting an entitlement to eligible incarcerated students. Further, there is case law holding that in a county jail facility, both eligible pretrial detainees and persons who are serving sentences are entitled to IDEA services. Donnell C., et al. v. Illinois State Board of Education, et al ., 829 F. Supp. 1016, 20 IDELR 514 (1993).

Under the IDEA, the state educational agency (SEA) is responsible for ensuring provision of special education services generally, including in adult correctional facilities. The governor or designee may assign the SEA’s responsibility for special education in adult correctional facilities to another agency or individual. 20 USC Sec. 1412 (a)(11)(C); 34 CFR 300.300, 300.600(d). There is no evidence that any Massachusetts governor has transferred DOE’s responsibility in this regard to another agency.9 I conclude, therefore, that DOE continues its general responsibility for special education of Massachusetts students who are in state or county adult correctional facilities, as stated in the IDEA.

State law :

Former state regulations at 603 CMR 28:700.00 provided that DOE, via its Bureau of Institutional Schools (now ESIS) was responsible for providing or arranging special education for students in facilities under the control of DMH, DMR, DPH, DYS and other human service agencies designated by the Board of Education. (This responsibility was shared by the LEAs of students’ parents, which were required to provide evaluations, re-evaluations, and reviews. 603 CMR 28:202(1)(c); 701.1.) This former regulation mentions neither DOC nor HOCs, and there is no record evidence thus far as to whether these agencies were “designated” by the Board of Education. However, DOE’s responsibility under state law for special education in HOCs is clear from G.L. c. 71B, Sec. 11A, which states:

The department of education shall provide special education to school aged children with special needs who are incarcerated in county houses of correction

The current regulation on point, 603 CMR 28.03(4)(c), in effect in September 2000, makes the LEA of parents’ residence responsible for providing services to students in both HOC and DOC, although DOE may provide some services:

The parent’s school district shall have programmatic and financial responsibility for the student’s special education services when an eligible student lives and receives educational services in a residential facility…operated by…[DOC] or County [HOC]. In certain…facilities, [DOE] may provide special education services, subject to appropriation and resource availability. The parent’s school district shall be responsible to coordinate with the [DOE] and to ensure that the student receives an evaluation, an annual review, and special education services as identified by the Team at a…meeting convened by the school district. The parent’s school district is not relieved of its obligations under state and federal special education law simply because the student is being served by the [DOE] or any other state agency.

603 CMR 28.03(4)(c).

In 2000, near the time when this regulation went into effect, the DOE Commissioner issued an interpretive memorandum entitled Coordination of Special Education Services Provided to Students in State/County Facilities (hereinafter, DOE Memorandum ). The DOE Memorandum states that, “school districts [produce IEPs] and make educational placement decisions and ESIS does not serve in place of the school district. Rather, ESIS provides services cooperatively with the school district …in state institutional facilities…” e.g., by helping LEAs evaluate students for initial eligibility and IEP reviews, serving on TEAMS, notifying LEAs of a potentially eligible inmate, and, at least for students in state-operated facilities, providing services on the IEP issued by the LEA. Id .

The DOE Memorandum further states that ESIS will notify districts if it cannot provide all IEP services, and that the district “may then determine the appropriate course of action.” Id . In March 2001, DOE further clarified its position on its role in a publication entitled E.S.I.S. Programs , attached as Exhibit C to DOE’s Supplemental Memorandum, which spells out how responsibilities for various functions (evaluations, TEAM meetings, etc.) are allocated between ESIS and LEAs within county HOCs.

To summarize, the IDEA explicitly entitles eligible incarcerated students to special education, regardless of whether the facility is state or county-run, and also makes the SEA is responsible for ensuring service delivery to such students. The relevant state statute makes DOE responsible for ensuring special education for eligible students in County HOCs. In its regulations and guidance documents, DOE interprets its responsibilities as covering students both in HOCs and DOC facilities, but as limited to assisting and collaborating with those students’ LEAs by identifying, assessing, and delivering services where possible, subject to appropriation and availability of resources.

Conclusion as to Joining DOC and DOE

DOC should not be joined as a party at this time. On the other hand, DOE should be joined as a party.

DOC : At first glance, joinder of DOC seems warranted. However, closer analysis leads to the opposite conclusion. My reasoning follows.

By virtue of its function, DOC necessarily was the gatekeeper of Student’s access to educational services, and Lowell’s access to Student, as long as Student was in DOC custody. In contrast with the situation in the Burlington ruling referred to above, DOC was in a unique position to allow or preclude services to Student. Thus, other entities, such as the Student’s school district, could only fulfill their roles and responsibilities for providing FAPE with DOC’s cooperation and assistance.

The Student and Lowell allege that DOC’s policies and practices at MCI Cedar Junction impeded Lowell’s efforts to evaluate and serve Student. On the other hand, DOC asserts that it supports Student receiving educational services, that it cooperated as much as possible with Lowell during the periods at issue, and that delays in serving Student stemmed from legitimate penological and security interests (as well as the layoff of DOC teaching staff).

Whether and to what extent DOC actually interfered with timely service delivery by Lowell, as well as the appropriate balance between educational and penological considerations, are questions of fact and law to be determined at a hearing on the merits. See 20 USC Secs. 1412(a)(11)(B); 1414(d)(6)(A)-(B); 34 CFR 300.2(b)(1)(iv); New Hampshire Department of Education , supra. While information from DOC witnesses will be absolutely critical at this hearing, I am not persuaded that DOC must be a party—as opposed to a source of information—in order to afford complete relief to any party or to fully resolve the dispute in this case.

First, no party or potential party has offered evidence that DOE’s responsibility for incarcerated students has been transferred to DOC. (See Note 9, above). Therefore if Student prevails on his claims that he was denied FAPE while in DOC custody, full compensatory relief could be ordered from DOE and/or the LEA. Further, since Student no longer is in DOC custody, there is no need to issue orders against DOC. Even if he were still in DOC custody, DOE and the LEA would be responsible for ensuring provision of educational services. If DOC restrictions interfered, it is DOE that would have to ensure service provision in light of those restrictions.10

Accordingly, under Rule 1F of the Hearing Rules , DOC should not be made a party to this dispute at this time. However, this does not preclude joinder in the future if warranted because of additional evidence or changed circumstances.

DOE : As discussed above , the IDEA makes DOE, as the Massachusetts SEA, ultimately responsible for ensuring FAPE for all eligible children within the state, including those in state or county correctional facilities. Additionally, as also discussed above, state statute, regulations, and DOE interpretive documents establish that DOE has a duty to oversee special education services to incarcerated students, and, in some cases, provide such services in collaboration with LEAs.

The extent of such responsibility, as well as whether DOE fulfilled it here, should be determined after a hearing on the merits. These issues cannot and need not be decided at this time. What is clear is that by law and regulation, DOE is inextricably involved in the special education of incarcerated students. Here, several of the criteria for joinder set forth in Rule 1F have been met; complete relief cannot be granted between the current parties (Student and Lowell); and DOE both has an interest in the subject matter and is so situated that the case cannot be disposed of in its absence. Therefore, DOE should be joined as a party.

3. Joinder of Haverhill

Legal framework :

Residency

In general, cities, towns, and school districts are responsible for providing public education to their residents. According to G.L. c. 76, Sec. 5, “[e]very person shall have a right to attend the public schools of the town where he actually resides “ (emphasis added). Consistent with c. 76, Sec. 5, and with the IDEA at 20 USC Sec. 1413(a)(1), the state special education statute provides that “school committees for every city, town or school district are responsible for identifying, evaluating and providing special education services for eligible children residing therein .” G.L. c. 71B, Sec. 3 (emphasis added).

“Residence” for school attendance purposes is different from legal residence or domicile, although the concepts are related. To establish domicile, a person must live in a particular location, with the intention to remain, and to abandon his/her prior domicile.) Hershkoff v. Registrars of Voters of Worcester . 366 Mass. 570 (1974). See also Amesbury Public Schools , 6 MSER 184 (Erlichman, 2000).11 A party seeking to prove legal residence or domicile would introduce such traditional indicia as leases or rent receipts, voter registration documents, utility bills, and the like.

On the other hand, a student may attend school where he/she actually resides, regardless of domicile. Considerations such as intention to remain in the current living situation or abandon a previous one are irrelevant. The pertinent inquiry is whether a student actually lives in a school district. G.L. c. 76, Sec. 5; c. 71B, Sec. 3; Doe v. Anrig , 651 F. Supp. 424, 430-431. (D. Mass. 1987); George H. and Irene L. Walker Home for Children, Inc. v. Town of Franklin , 416 Mass 291, 297 (1993) (hereinafter “ Walke r Home) . See also, Georgetown Public Schools , BSEA No. 02-1798 (Crane, April 5, 2002); In re Andrew M ., 2 MSER 133 (Beron, 1996); In Re: Wakefield Public Schools , BSEA No. 94-0744, 20 IDELR 592 (Apgar,1993).

Usually, a child’s “actual residence” is that of the parent(s). However, if a student lives apart from parent(s), e.g ., in foster care, with relatives, or in an institution, DOE regulations determine the school district or districts responsible for the student’s education. Walker Home at 416 Mass 291, citing Board of Education v. School Committee of Amesbury , 16 Mass. App. 508, 512 (1983).

Before January 1, 2001, the relevant Massachusetts regulation, 603 CMR 28:202(1)(a), (c) and (d) provided as follows:

202(1)(a) Children who live with their father, mother or guardian, or who are eighteen or over and…have established their own residence as adults are the responsibility of the school committees with jurisdiction over the cities, towns or school districts in which they live.

202.1(c) Children who live and receive special education services at a…Department of Corrections of County House of Corrections facility are the responsibility of the school committee(s) which has (have) jurisdiction…where the child’s father, mother or guardian lives.

202.1(d) Children who are in a living situation….including…crisis or respite facilities and relative’s homes…not funded by [DSS] are the responsibility of the school committee …where such children live. Where such child has a father, mother or guardian living in the Commonwealth and the child, if over eighteen, has not established a separate residence…the school committee responsible…may bill and shall receive payment for the costs of educating the child from the school committee(s) with jurisdiction over…where the father, mother or guardian lives…

202.1(h) Nothing in these regulations shall limit the educational rights of homeless children and parents afforded under the McKinney Homeless Assistance Act, 42 U.S.C. Sec. 11431 et seq.

Effective January 1, 2001, the state regulations were amended to state that “[s]chool districts shall be programmatically and financially responsible…based on the definitions of Resident school district , Parent’s school district , and in conjunction with several standards. 603 CMR 28.03(4).

The resident school district, defined as the one “in which the student resides,” is responsible for students who are 18 or older and “have established their own residences as adults. “ However, “If the student has been placed in…an institutional facility…such location shall not constitute the residence of the student.” 603 CMR 28.02(20).

The parent’s school district, i.e., the one “where the father, mother, and/or guardian resides…or, if the eligible student is in the care or custody of [a] state agency…where the parent(s) are…or were last known to be living without regard to the parent’s custody status.”12 is programmatically and financially responsible for special education services to an eligible student in residing in a DOC or county HOC facility. 603 CMR 28.03(4)(c)13

When a student lives in a relative’s home or in a state-funded crisis or respite facility, the resident and parents’ districts have, respectively, programmatic and financial responsibility for the student’s special education. Id .

Finally, Massachusetts students who are homeless come within the purview of the McKinney-Vento Homeless Assistance Act (McKinney or the Act), 42 USC Sec. 11432 et seq.14 The Act generally requires school districts receiving funds thereunder to provide full access to district schools to of homeless children within their boundaries as well as to identify homeless youth and disseminate information about their educational rights under McKinney. 42 USC Sec. 11432 (6) (g)(3). The Act further requires school districts to (1) permit homeless students to continue in their schools of origin (and assist with transportation) for the remainder of the academic year when they become homeless, as well as for the following academic year if the student becomes homeless between years, or (2) attend the school in the enrollment area where the homeless student is actually living. 42 USC Sec. 11432(6)(g)(3)(A) . See also In Re Newton and Cambridge Public Schools , 5 MSER 113 (Crane, 1999).

Here, during the relevant period, Student has been in two types of living situations: (1) institutional, including Essex County HOC, Taunton State Hospital, and DOC facilities, and (2) short-term arrangements including staying with an uncle and in a homeless shelter.

It is clear from the regulations on point that Lowell, as Student’s mother’s residence, was the only responsible LEA when Student was in county and state correctional (and hospital) facilities. 603 CMR 28:202 (1)(c) (pre-January 2001); 603 CMR 28.02(16); 603 CMR 28.03(4)(c). (post January 2001) These regulations do not make an exception for students who established their own residence after turning 18 and before incarceration, and no party has cited authority for inferring such exception. Therefore, from mid-September 1999 through January 2003, when Student was either incarcerated or hospitalized the vast majority of the time, Lowell is the only responsible LEA.

The more complicated issue is whether, during the earlier period from about July 1, 1999, when Student returned from California, to mid-September, 1999, Student had established a residence apart from his mother in Haverhill within the meaning of the regulation then in effect (603 CMR 28:202(1)(a)), or if Haverhill otherwise was responsible for Student’s education.

No evidence has been presented that Student established a legal domicile in Haverhill; however, this is immaterial because whether Haverhill had responsibility to provide Student with educational services depends not on Student’s legal residence or domicile, but on where he actually lived.

Thus, the next inquiry is whether Student’s short-term stays in Haverhill with his uncle and in a shelter constituted “actually living” there. In addressing similar situations, BSEA hearing officers have looked at various factors, including whether a placement is “temporary by design,” like a respite facility, Tyngsborough Public Schools , 5 MSER 16 (Byrne, 1999); whether a student sleeps, eats, does homework, keep possessions, etc. in a particular district; Agawam Public Schools , 6 MSER 1 (Byrne, 2000), and, in general, whether the student’s actual residence is “clearly established and…either for long term duration or for extended periods of time so that such students could attend schools…that they could not attend if they continued to reside in their prior residences.” Amherst-Pelham RSD , BSEA No. 03-1839 (Oliver, January 21, 2003).

The written submissions in this case show only that Student stayed with an uncle in Haverhill for a few weeks, at most, and at a Haverhill shelter for a total of about three nights during July, August, and part of September 1999. While Student theoretically had the right to attend school in Haverhill during this time, if he could show that he actually lived somewhere in Haverhill (or was homeless in Haverhill), he did not attempt to do so. Between about mid-September 1999 and December 2001 when Student entered the custody of DOC, he was almost exclusively in jail or a hospital.

Based on the foregoing, I find that Lowell has presented insufficient evidence that Student actually lived in Haverhill. It follows that if Haverhill has any potential liability, it does not derive from Student having established a residence there apart from his mother. At most, Haverhill might have had programmatic responsibility when Student was with his uncle or in the shelter, but even then Lowell would have had fiscal responsibility. 603 CMR 28:202(1)(d) (pre-2001); 603 CMR 28 (04)(4)(d) (post-2001).

The only remaining considerations are whether Haverhill was a responsible school district under the McKinney-Vento Homeless Assistance Act or the Child Find provisions of the IDEA and G.L. c. 71B. Under McKinney, Student could have attended school in Haverhill while he was homeless in Haverhill, even if he were unable to prove that he was a Haverhill resident. (Arguably, he also could have attended school in Lowell as his last school district before he became homeless.) Once Student stopped being homeless within the meaning of McKinney, i.e ., because he was in correctional facilities or hospitals most of the time, responsibility reverted to Lowell as the residence of Student’s mother. Thus, because Student could have enrolled in the Haverhill Public Schools as a homeless student, although he did not, Haverhill potentially had responsibility for Student’s education—shared by Lowell– during the brief, approximately 2 ½ month period from July through mid-September 1999, assuming that he actually was located in Haverhill during that period. However, given the short time involved and lack of information about where Student was for much of that time, this potential responsibility does not, at this time, warrant joinder.

Child find : The IDEA requires DOE to have policies ensuring that all children with disabilities in the state who need special education are “identified, located and evaluated…” 40 USC Sec. 1412(a)(3)(A); 343 CFR 300.125. In Massachusetts, child find activities are performed by local school districts according to a plan approved by DOE. G.L. c. 71B, Sec. 3; 603 CMR 28.300.0-304.8 (former regulations).15 Haverhill did not identify, locate or evaluate Student while he was there. Had Haverhill done so, the outcome for Student might have been better. However, no evidence has been presented that Haverhill’s child-find plan was legally defective or improperly implemented.

Conclusion as to Haverhill

In light of the foregoing, I am persuaded that complete relief for the period prior to Student’s release from DOC custody, if relief is warranted, can be granted without joining Haverhill as a party. Lowell has presented too little evidence to date that Student actually lived in Haverhill to find Haverhill responsible as Student’s separate residence. Further, while Student had the right to go to school in Haverhill while he was homeless, he did not attempt to do so, and the very short period of time at issue does not warrant joinder. Finally, there have been no facts presented that Haverhill violated its child-find responsibilities to Student, either because its child find plan was inadequate or because it failed to implement its plan. I will revisit the issue of joining Haverhill, however, if any party introduces additional evidence on these points at a hearing on the merits.16

Additionally, this ruling applies only to the period prior to Student’s release from DOC custody and apparent move back to Haverhill, and not to any current or future obligations that Haverhill may have to Student.

Conclusion and Order

Based on the foregoing, Student’s and Lowell’s Motion to Join DOE as a party is GRANTED. Student and Lowell’s Motion to Join DOC as a party is DENIED, without prejudice. Lowell’s Motion to Join Haverhill Public Schools is DENIED, without prejudice. The parties will be contacted to schedule further proceedings.

By the Hearing Officer,

___________________________

Dated: February 12, 2003


1

Student is twenty years old, and, at all relevant times, has been an adult.


2

Student states, without contradiction, that he was thrown out of his mother’s home because of a violent situation with Mother’s boyfriend.


3

The documents submitted are unclear as to the exact sequence, frequency and duration of hospitalizations and jail stays, but the parties do not dispute that this was the general pattern during the period in question .


4

See Finding of Fact No. 14.


5

Student further states that if DOE is joined, he will amend his hearing request to add specific allegations to this effect. This issue, as well as whether the BSEA has jurisdiction to address it, need not be decided in order to rule on the pending Motion.


6

The Chapter 766 regulations were amended on an emergency basis in September 2000, with final regulations taking effect on January 1, 2001, as 603 CMR 28.00 et seq.


7

The federal regulation referred to above, 34 CFR 300.142(a), requires states to assure a mechanism to coordinate between the SEA on one hand, and non-educational public agencies on the other, where the services of the non-educational agencies also constitute special education or related services or are necessary for ensuring FAPE to children with disabilities. This mechanism also must obligate non-educational public agencies to fulfill the obligation to ensure FAPE either directly or through other arrangement. 34 CFR 300.142(a), (b).


8

“ Qualifying inmates are entitled to a free and appropriate public education while incarcerated. However, legitimate prison regulations aimed at maintaining a safe, secure, and disciplined inmate population cannot be nullified or substantially undermined by an inmate’s current IEP which can only be implemented at such a cost. Legitimate prison interests must be accorded significant deference and the IEP must be modified to the extent possible, with a view toward striking the appropriate balance necessary to vindicate both penological and educational interests to the extent those interests can be reconciled and harmonized.” New Hampshire Department of Education; and New Hampshire Department of Corrections, v. City of Manchester, NH School District; and Marc Adams , 23 IDELR 1057 U.S.D.C. New Hampshire, 94-573-M ( March 21, 1996)


9

The only documentation that any party or potential party could locate is a 1979 draft memorandum of agreement between DOE and DOC. There is no evidence that this agreement was ever finalized.


10

Arguably, DOE could seek to join DOC if the latter precluded DOE from performing its duties.


11

While prior BSEA decisions are not binding precedent, they may be used for guidance .


12

603 CMR 28.02(16)


13

Since, in certain facilities, DOE may provide special education services, subject to appropriation and resource availability, the parent’s school district is responsible for coordinating with DOE and ensuring that the student receives an evaluation annual review and special education services identified by the TEAM at a meeting convened by the school district. The parent’s school district “is not relieved of its obligations …simply because the student is being served by the Department of Education or any other state agency”. 603 CMR 28.03(4)(c).


14

The McKinney Vento Act was re-authorized in 2002.


15

Current state regulations do not explicitly address child-find; therefore, the state statute and federal law govern .


16

I note that in many such BSEA cases, DOE has designated or clarified an LEA assignment, and the hearing officer takes DOE’s interpretation of the relevant regulations into consideration. See, e.g ., Georgetown Public Schools, supra.

In this case, Lowell has asked DOE to clarify Student’s LEA assignment, but DOE has not completed this process. The parties may request reconsideration of this issue once DOE has acted.


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