Student v. Blackstone Millville Regional School District, Wachusett Regional School District & Bay Path Southern Worcester County Regional Vocational Technical School District – #08-0785



<br /> Student v. Blackstone-Millville Regional School District, Wachusett Regional School District & Bay Path/ Southern Worcester County Regional Vocational Technical School District – #08-0785(2)<br />

COMMONWEALTH OF MASSACHUSETTS

SPECIAL EDUCATION APPEALS

In Re : Student v. Blackstone-Millville Regional School District, Wachusett Regional School District & Bay Path/ Southern Worcester County Regional Vocational Technical School District

BSEA # 08-0785

Ruling on Blackstone-Millville Regional School District’s Motion to Be Dismissed as a Party, Wachusett Regional School District’s Motion to Dismiss & Bay Path/ Southern Worcester County Regional Vocational Technical School District’s Motion to Dismiss and Student’s/Parent’s Objection to Blackstone-Millville Regional School District’s Motion to Be Dismissed as a Party

On September 24, 2007, Blackstone-Millville Regional School District (BM) filed a Motion to Be Dismissed as a Party for lack of subject matter jurisdiction in the above- referenced matter. Wachusett Regional School District (Wachusett) filed a Motion to be Dismissed as a Party-defendant on September 24, 2007. Also on September 24, 2007, Southern Worcester County Regional Vocational Technical School District/ Bay Path Regional Vocational Technical High School (Bay Path) filed a Motion to Dismiss itself from the above-referenced matter.

Student responded on October 1, 2007, objecting only to the motion filed by Blackstone-Millville Public Schools.

This ruling is issued pursuant to the Individuals with Disabilities Education Act (20 USC 1400 et seq .), the state special education law (MGL ch. 71B), the state Administrative Procedure Act (MGL ch. 30A), and the regulations promulgated under those statutes, in consideration of the arguments proffered by the parties and the relevant facts herein taken from the Parties’ submissions.

Facts:

1. Student is a seventeen-year old, twelfth grader who is in the custody of the Department of Social Services (DSS) through a CHINS petition, and is residing in a group home in Rutland, MA.

2. Student’s Parent resides within BM.

3. In March 2007, Student enrolled in Bay Path. Bay Path found Student eligible to receive special education services in June 2007, and proposed that Student receive special education services in a full inclusion program at Bay Path for the 2007-2008 school year. Parent, who retains educational decision making authority for Student, accepted the IEP’s program and placement in June 2007. Student’s services under this IEP, which runs from June 4, 2007 through June 4, 2008, are not in dispute.

4. The June 2007 IEP does not call for provision of regular or special transportation nor are the parties claiming that Student requires special transportation.

5. Student intends to pursue a career as a hair dresser and has completed 775 of the 1000 hours required to obtain a certificate in cosmetology.

6. On or about September 1, 2007, Student enrolled at Assabet Valley Vocational Technical High School (Assabet) located in Marlborough, MA. At the time of enrollment, Student was a special education student entitled to receive services under the IEP drafted by Bay Path. Student cannot at this time pursue her preferred course of study at Bay Path. However, she could complete the requirements in cosmetology at Assabet.

7. Student has never been enrolled in the Wachusett Regional School District.

Position of the Parties:

BM states that the sole issue before the BSEA is which school district, if any, is responsible to provide Student transportation from her group home in Rutland, MA, to the Assabet Valley Regional Vocational High School as stated by Student in her request for hearing filed on July 29, 2007.

BM argues that Student’s most recent IEP was drafted by Bay Path. This IEP did not offer Student special transportation as a related service required by Student. This IEP runs from June 4, 2007 through June 4, 2008. BM argues that as such, the requested transportation falls outside federal and Massachusetts special education laws and regulations. Consequently, BM states that the BSEA lacks jurisdiction to order the relief sought by Student.

Wachusett states that Student has never been enrolled in the district and had not requested that the district provide Student with educational services. Wachusett argues that since Bay Path found Student eligible and drafted an IEP calling for Student to receive services in said school, Bay Path is financially and programmatically responsible for Student as the “program school” under 603 CMR 28.10(6), while Student is enrolled at Bay Path. According to Wachusett, Bay Path’s responsibility shifted to Assabet Valley Vocational Technical School when Student enrolled there in September 2007. Under 603 CMR 28.10(6) and 603 CMR 28.03(c)(1), Assabet Valley Vocational Technical School assumed all programmatic and fiscal responsibility for Student. Wachusett also argues that Student’s IEP does not provide specialized transportation services on the basis of a disability as a related service under 603 CMR 28.10(6), and therefore, transportation is the responsibility of Assabet.

Lastly, Wachusett argues that Student has not alleged that she requires or is entitled to transportation as a related special education service, or that transportation is required to attend a special education program. According to Wachusett, Student’s claim for provision and funding of transportation to her vocational school of choice therefore falls under M.G.L. c. 74 §8(a), the vocational transportation statute. Wachusett states that said claim falls outside the jurisdiction of the BSEA. Wachusett further asserts that if the BSEA determined that it had jurisdiction over Student’s claim for transportation services under M.G.L. c. 74 §8(a), this claim would be against the municipality in which Student resides which, in the instant case, is the town of Rutland, MA. In spite of Wachusett’s having been joined, Wachusett asserts that Student failed to assert a claim for which relief could be granted by the BSEA. Wachusett requests that it be dismissed as a party.

Wachusett also states that during the conference call of September 10, 2007, Parent orally moved to have Wahusett dismissed as a party and Wachusett agreed. The hearing officer declined to rule at that time and instead instructed Parent to file her request in writing.

Bay Path argues that the dispute involves a transportation issue under M.G.L. c. 74 §8A, and not a transportation issue pursuant the IDEA and/or Chapter 766. Bay Path stated that the transportation required was for taking Student to a regular education placement and Bay Path was unable to provide it. Bay Path further relied on the arguments made in its opposition to the Parent’s motion for Joinder of Bay Path. It requested that the BSEA dismiss Bay Path for lack of jurisdiction.

Student responded on October 1, 2007, stating that she was not responding to the Motions filed by Wachusett or Bay Path, but argued against dismissal of Blackstone-Millville. Student states that BM is the residence of Student’s Parent and the DOE found it to be responsible for Student’s education. She further argued that the BSEA has jurisdiction to hear any dispute regarding provision of a free appropriate public education (FAPE) for students with special education needs in Massachusetts. Student is very motivated to complete the necessary hours required for her to complete her cosmetology/vocational training. Student’s emotional health, which is her identified area of need, is linked with to her ability to complete her senior year and obtain her certificate in this area. Her inability to pursue her chosen area of study would have a negative impact upon Student’s self-esteem and mental health. Finally, Student agrees that while the case could be decided under the vocational statute, it is still a special education case and therefore falls under the jurisdiction of the BSEA.

Ruling:

For the purpose of this Ruling, I take into account that the sole issue in Student’s request for hearing is determination of responsibility regarding Student’s transportation from Rutland to Assabet. Furthermore, I note that Student’s IEP does not state that regular or special transportation is required for Student to access her program of choice in Assabet. All three districts move for dismissal as parties arguing that this matter does not involve the provision of special education but rather transportation, and asserting that the applicable statute to address Student’s concern is M.G.L. c. 74 §8A. Parent does not contest Wachusett’s or Bay Path’s motions and therefore, their respective motions to be dismissed as parties are GRANTED. I now turn to the question of whether BM must also be dismissed for lack of subject matter jurisdiction.

The Standard Adjudicatory Rules of Practice and Procedure , 801 CMR 1.01(7)(g)(3) and Rule XVII B 31 of the Hearing Rules for Special Education Appeals provide the standards regarding Motions to Dismiss. As discussed in In Re: Norfolk County Agricultural School , BSEA # 06-0390 (Berman, 2006),

“… A BSEA Hearing Officer may allow a motion to dismiss if the party requesting the appeal fails to state a claim on which relief can be granted. Since this rule is analogous to Rule 12(b)(6) of the Federal and Massachusetts Rules of Civil Procedure, BSEA hearing officers have generally used the same standards as the courts in deciding motions to dismiss for failure to state a claim. Specifically a motion to dismiss should be granted only if the party filing the appeal can prove no set of facts in support of his or her claim that would entitle him or her to relief that the BSEA has authority to order. That is, a hearing officer may dismiss a case if he or she cannot grant relief under either the federal or state special education statutes or the relevant portions of Section 504 of the Rehabilitation Act.”

To ascertain whether the specific relief sought by Student/Parent falls within the purview of the BSEA I turn to the jurisdiction of the BSEA as granted under 603 CMR 28.08(3). The aforementioned regulation limits the jurisdiction of the BSEA to resolving differences of opinion among school districts, private schools, parents and consistent with 34 CFR §300.142(a), state agencies, over any matter concerning the eligibility, evaluation, placement, IEP, provision of special education in accordance with state and federal law, or procedural protections of state and federal law for students with disabilities as well as issues involving the denial of a free appropriate public education guaranteed by Section 504 of the Rehabilitation Act of 1973, as set forth in 34 CFR §§104.31-104.39.2

Nothing in the aforementioned regulation, grants the BSEA jurisdiction over transportation issues that are not required by Student because of her disability, or to access a particular special education program in which Student has been placed by the responsible district. Student/Parent state in the partial opposition to respondents’ motions, that the DOE issued a determination that the LEA responsible for Student’s education is BM, the district where Parent resides.

Since Student attends a vocational school under an IEP that does not call for transportation as a related service, the question regarding which school district is responsible for providing the transportation falls outside the jurisdiction of the BSEA. BM is persuasive that the transportation issue in this matter is governed under M.G.L. c. 74 §8A, which states in relevant part that

A municipality, wherein a person resides who is admitted to a day school in another municipality under section 7, shall, through its school committee, when necessary, provide for the transportation of such person, and shall, subject to appropriation, be entitled to state reimbursement to transportation of such person…”

The aforementioned statute, addressing vocational education, impacts upon regular education, and does not fall under the jurisdiction of the BSEA. Since the relief requested by Parent, falls outside federal or Massachusetts special education law and regulations, the BSEA lacks jurisdiction to entertain Student’s/Parent’s claim and grant the relief sought by them. As such, the matter must be dismissed with prejudice as to the issue of transportation with regard to all three respondents.

Lastly, Wachusett argued that Bay Path, as the program school, is the responsible party under 603 CMR 28.10, since this matter did not come to the BSEA as a challenge of an LEA assignment. Under the Massachusetts Regulations, LEA assignments call for the DOE to have the first opportunity to address the issue. The jurisdiction of the BSEA is triggered only after the DOE has issued its LEA assignment and the parties then challenge the DOE’s determination. That is not the case here.

Orders:

1. BM’s Motion to Dismiss as a party for lack of subject matter jurisdiction is hereby GRANTED .

2. Wachusett’s Motion to Dismiss as a party for lack of subject matter jurisdiction is hereby GRANTED .

3. Bay Path’s Motion to Dismiss for lack of of jurisdiction is hereby GRANTED .

4. The above referenced matter is dismissed with prejudice for lack of subject matter jurisdiction regarding transportation of Student from Rutland, MA, to Assabet.

By the Hearing Officer,

______________________________________

Rosa I. Figueroa

Dated: October 25, 2007


1

“ By Motion/Request of a Party : Any party may file a motion or request to dismiss a case for failure: 1) to prosecute or proceed with the case; 2) to follow or comply with these rules or with any Hearing Officer order; 3) to state a claim upon which relief can be granted; or 4) to sustain its case after presentation of evidence. The Hearing Officer may allow a motion or request to dismiss with or without prejudice.” Rule XVII B of the Hearing Rules for Special Education Appeals .


2

However, a school district cannot request a hearing on a parent’s failure or refusal to consent to initial evaluation or initial placement of a student in a special education program. 603 CMR 28.08(3)(c). The BSEA also has jurisdiction to determine assignment of school district responsibility under 603 CMR 28.10 pursuant to 603 CMR 28.10(9).


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