Student v. Attleboro Public Schools – BSEA #04-0312



<br /> Student v. Attleboro Public Schools – BSEA #04-0312<br />

COMMONWEALTH OF MASSACHUSETTS

SPECIAL EDUCATION APPEALS

In Re: Student v. Attleboro Public Schools BSEA # 04-0312

RULING ON ATTLEBORO PUBLIC SCHOOLS’ MOTION TO JOIN THE SABIS CHARTER SCHOOL AND FOXBOROUGH REGIONAL CHARTER SCHOOL’S (SABIS) OPPOSITION TO ATTLEBORO PUBLIC SCHOOLS MOTION FOR JOINDER

On February 20, 2004 Attleboro Public Schools District, (hereinafter, Attleboro) filed a Motion to join Sabis Foxboro Regional Charter School (hereinafter, “SFRCS”) as a necessary party in the above referenced matter. Attleboro argues that to the extent that Parents seek compensatory education services for the period covering February 2003 through June 30, 2003, SFRCS, is responsible.

After an extension was granted, on March 8, 2004, Foxboro Regional Charter School (hereinafter, “FRCS”), which had replaced Sabis Foxboro Regional Charter School1 (hereinafter, “SFRCS”), filed a Motion in Opposition to Attleboro’ Motion for Joinder. In its motion in opposition, FRCS alleges that on or about January 2004, the Sabis organization ceased to have control over all facets of the operation of the school and a new charter approved by the Department of Education under MGL c. 71 was created, that is FRCS. FRCS further argues that SFRCS notified Attleboro several times that it expected to finalize Student’s out of district placement, and Attleboro never contested said responsibility.

Facts and Arguments:

According to FRCS, Student’s Team convened in March 2003, and the Team recommended a specialized out of district day program for Student. Theresa Alixe from Attleboro was present at the meeting. SFRCS then forwarded the IEP to Attleboro on March 25, 2003. No specific placement was identified. During Student’s third trimester at SFRCS she was hospitalized.

Thereafter, in early June 2003, Parents’ Advocate, requested that SFRCS place Student in a specialized summer program. SFRCS responded that the request should be directed to Attleboro and forwarded a copy of the Advocate’s letter to Attleboro. SFRCS then wrote to the Parent on June 20, 2003 requesting again that she forward a complete release of information form so that SFRCS could forward information it had on Student to Attleboro. A redacted set of Student’s records was forwarded to Attleboro on June 20, 2003, inclusive of the “IEP drafted on March 24, 2003; and IEP dated January 2003; a Learning Abilities Assessment Report dated February 2001; and assorted other educational records.” According to SFRCS, Attleboro did not refuse to accept the information or indicate that it was not responsible to plan for Student. Attleboro argues that SFRCS drafted the IEP and was the party responsible to provide those services. Additionally, Attleboro states that Parents’ request for Hearing includes allegations that SFRCS failed to offer Student services consistent with her last agreed upon placement.

On June 2, 2003, a Systems Meeting was held at Children’s Hospital to plan for services and discuss placements for Student. No representative from Attleboro was present. At some point thereafter, Attleboro began to explore possible out of district placements for Student and took Parents to view these programs in the late part of the 2003 summer. According to Attleboro it was on June 30, 2003 when a CAP meeting was held following Student’s hospitalization, that Parents indicated that Student would return to Attleboro. At that meeting, Attleboro recommended that Student attend the ABACUS summer program in Attleboro. Attleboro further recommended that Student attend the BICO Collaborative program for students with Asperger’s Disorder during the 2003-2004 school year. Therefore, up to June 30, 2003 the responsible party for Student’s placement was SFRCS.

Legal Framework:

The BSEA has the authority to join a necessary party to a BSEA proceeding. Rule 1:F. of the Hearing Rules for Special Education Appeals allows a Hearing Officer to join a party upon written request, in cases 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 and is so situated that the case cannot be disposed of in their absence.” Said Rule considers the following factors in determining whether a person/entity should be joined: “the risk of prejudice to the present parties in the absence of the proposed party; the range of alternatives for fashioning relief; the inadequacy of a judgement entered in the proposed party’s absence; and the existence of an alternative forum to resolve the issues.” Hearing Rules for Special Education Appeals, Rule 1:F . ; see also, In Re: Jeremy L., Ruling on Motion to Join , BSEA #93-2353 (1993). The BSEA Rules are based on the Standard Adjudicatory Rules of Practice and Procedure, which govern Special Education cases. 801 CMR §1.01(7)(g).

Conclusion:

Here, the Parents have indicated through their newly retained counsel that they intend to pursue compensatory claims that date back to February 2003, when Student was enrolled at SFRCS. A legitimate dispute exists between Attleboro and SFRCS regarding the period of time during which each of them was responsible to provide services to Student.

Both Attleboro and FRCS agree that charter schools are like any public school. Attleboro asserts that as such the charter school, ie., FRCS, bares the responsibility to hold Team meetings, develop IEPs and provide services. It relies on M.G.L. c. 71 § 89, paragraph 12, the DOE Advisories and previous BSEA decisions. Rebha G. and Boston Renaissance Charter School, BSEA #96-2207 (Byrne 1995). Attleboro requests that SFRCS be joined as a party and that Attleboro is ultimately dismissed as a party. SFRCS also meets the second criteria under which a party must be joined; it is so uniquely situated that the case cannot be disposed of in its absence. Hearing Rules for Special Education Appeals, Rule 1:F .

FRCS argues that Attleboro’s responsibility vis a vis Student began in March 2003. Given that Student’s compensatory claim dates back to February 2003, and since FRCS claims no responsibility by Attleboro until at least March 2003, by its own admission, SFRCS has exposure for at least one month in 2003 should Student prevail in her claim for compensatory education. Therefore, complete relief cannot be granted unless SFRCS is joined.

According to FRCS, SFRCS no longer exists and the current FRCS is not responsible for the former charter school’s actions. Furthermore, according to FRCS, SFRCS’s responsibility ended when Student was moved to an out of district placement. It considers Student’s hospitalization the triggering point. Therefore, SFRCS and FRCS are not responsible for any harm that befell Student after June 2003. FRCS argues that under M.G.L. c.71 § 89, financial responsibility for out of district placements rests with the student’s home district, in this case, Attleboro. Accordingly, FRCS asserts that it should not be joined as a Party.

The question here is whether there is a sufficient nexus between SFRCS and FRCS to conclude that FRCS would be responsible to assume liability for transgressions or interruptions in services committed by SFRCS. Given that neither side produced sufficient information to answer this question and given that documentation associated with the creation and/or renewal of charter schools is public information, I had staff at the BSEA request this information from the DOE.

The information received clearly shows that there is no difference between SFRCS and FRCS. All that FRCS requested was permission to change its name from “Sabis Foxborough Regional Charter School to Foxborough Regional Charter School”. In its letter to the Commissioner of the DOE, SFRCS wrote:

In accordance with the provisions of Section 1.11 of the Regulations on Charter Schools (603 CMR 1.00), we are seeking permission to change our school name from SABIS Foxborough Regional Charter School to Foxborough Regional Charter School reflecting the change submitted as part of our charter renewal last year… The request was approved by the Board of Trustees in open session at its meeting of September 9, 2003. (HOE-1)

On November 4, 2003, Kristin E. McIntosh, Associate Commissioner for Charter Schools wrote to Mr. Hickey, Chairperson of the Board of Trustees for FRCS to notify him that the Commissioner had approved the name change on or about October 30 th . (HOE-2) Thereafter, John P. Daley, Business Manager for FRCS wrote the DOE Director of Research and Finance for Charter Schools, confirming the name change and requesting an update of accounting system to reflect the new name. (HOE-3)

Despite the attorney’s assertion that there is no connection between the two schools, these documents show that indeed SFRCS and FRCS are the same entity. Since I have already concluded that SFRS is a necessary party and since I have further found that SFRCS and FRCS are the same entity, joinder is appropriate. Attleboro’s Motion to Join FRCS to this proceeding is hereby GRANTED .

Lastly, I find that at this time there is insufficient information to conclude that no dispute exists against Attleboro so that it can be dismissed as a party.

So Ordered by the Hearing Officer,

____________________________________

Rosa I. Figueroa

Dated: March 23, 2004


1

Through on or about December 2003, what now exists as Foxboro Regional Charter School was known as Sabis Foxboro Regional Charter School. FRCS asserts that it is now solely responsible for “its operation as its new charter recognizes that it does not rely on the Sabis corporation for any operational control or functions.” FRCS states that the Sabis organization has remained FRCS’s landlord.


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