Student v. Brockton Public Schools District – BSEA #02-0310



<br /> Student v. Brockton Public Schools District – BSEA #02-0310<br />

COMMONWEALTH OF MASSACHUSETTS

SPECIAL EDUCATION APPEALS

In Re: Student v. Brockton Public Schools District

BSEA # 02-0310

Ruling on Brockton Public Schools’ Motion To Join the Department of Social Services As A Necessary Party and the Department of Social Services’ Opposition to Respondent’s Motion To Join

On September 5, 2001, the BSEA received Brockton Public Schools’ (hereinafter, “Brockton”) Motion To Join the Department Of Social Services As A Necessary Party to the above referenced Appeal before the Bureau of Special Education Appeals (hereinafter, “BSEA”). The Department of Social Services (hereinafter, “DSS”) responded on September 12, 2001 with an Opposition to Respondent’s Motion To Join The Department of Social Services As A Necessary Party. This was followed by DSS’ Memorandum in Support of Opposition to the Joinder received on September 18, 2001. The matter was scheduled on September 12 th for a Motion Session held via Telephone Conference Call on September 18, 2001. The Student/Parents filed no response in support of either position, but asserts that the Student’s need for a residential placement is at least in part related to the Student’s educational needs.

The case relates to a 15 year old student who resides in the City of Brockton where special education services have been offered since the Student’s early childhood years. The Student’s entitlement to special education services is not at issue. The Student presents with a combination of learning disabilities, a seizure disorder and attention deficit disorder. The Student also has a long history of non-attendance in school and is currently receiving special education services at the Ithaca Alternative School in Brockton. Parents’ request placement of the Student in a residential school. Brockton argues that the Student’s need for residential placement stem from a longstanding history of non-attendance and not out of his educational needs.

The Student is currently the subject of a CHINS petition and he is currently considered “an active case” with the DSS and a social worker is assigned to oversee the case. The DSS has neither “care nor custody” of the minor child. During the 1998-1999 school year DSS placed the Student at St. Vincent’s School in Fall River. This Ruling will address which are the necessary parties to decide the dispute regarding the appropriate special education services to which the Student is entitled.

Position of the Parties :

Brockton asserts that the Student’s needs for residential services are not educationally related, hence not mandated under the state and federal special education laws. It takes the position that while it is responsible for the day programming for Student’s educational services, DSS bears the responsibility for the residential portion of the Student’s services. It therefore argues that the DSS is a necessary party to resolve this dispute and petitions joinder of the DSS to the case at bar.

Brockton relies on the Ruling on Joinder issued in In Re: Medford Public Schools, BSEA # 01-3941 by Hearing Officer William Crane. It argues that the enactment of Section 162 provides the BSEA with a mechanism for students entitled to special education services to receive all services to which they are entitled under Federal and State law. The aforementioned Section 162 provides the BSEA with jurisdiction over state human service agencies in accordance with their own statues and regulations. Brockton alleges that in the case at bar DSS is responsible to provide an array of services including a residential placement if needed in accordance with M.G.L. c. 18B and 110 C.M.R. The Student’s difficulties with school performance are directly connected to his lack of attendance. Since he is a client of DSS, non-educational services that impact his ability to take full advantage of specialized instruction and related services should be provided under the auspices of the DSS.

In its Opposition, the DSS raises four major issues. It states that it has neither care nor custody of the minor Student, and that all decision-making power regarding the best interest and education of the minor rests with the Parent. As a result it argues that all the parties necessary for adjudication of issues regarding the Student’s rights vis a vis a FAPE are already before the BSEA. DSS has no intention of interfering with the Parent’s decisions. Secondly, it argues that the Motion is premature because the BSEA has not entered a “determination that the services at issue constitute special education or related services that are within the authority of the BSEA to effect.” Opposition of Department of Social Services To Respondent’s Motion to Join The Department of Social Services as a Necessary Party , received on September 12, 2001.

Thirdly, the DSS argues that Brockton lacks standing to petition that the DSS be joined and ordered to provide residential services. While a CHINS action is currently open on Student the Court has not transferred custody of the Student to DSS. According to DSS only a Parent or a guardian can petition that residential services be provided to a child. Even where a Court were to order residential placement for a child, the type and length of the child’s placement would fall within the DSS’ discretion. According to DSS, its’ discretionary powers for placement of children extends to cases referred to voluntary placements and is subject to least restrictive environment principles. 110 C. M.R. 4.10; 110 C.M. R. 7.120(2); see also 42 U.S.C. 675(1)(B).

Fourth, DSS states that the BSEA lacks authority to compel DSS to place the Student residentially because the Parent would lose custody of the child if the placement were to exceed 12 months which would constitute a violation of Federal and State special education law. In making this argument DSS relies on Federal child welfare laws requiring that permanency hearings be held annually for all children in placement. 42 U.S.C. § 675; M.G.L. c.119 §29B; see also M.G.L. c.119 §23(C).

Fifth, under M.G.L. c. 18B §4 and 110C.M.R. §4.08 and §4.08A, DSS can assess a fee to the families of children placed residentially which would constitute a violation of the Student’s right to receive educational services at no cost.

Finally, DSS’ sixth argument is that the BSEA lacks authority to order DSS to provide residential or other services to the Student under the circumstances of the case at bar. Based on these six arguments DSS opposes joinder.

The Student argues that he requires residential placement in order to receive a FAPE. He however, takes no position in favor or against the joinder. Rather, he argues that his need for residential services is at least in part educationally-related and leaves the decision regarding who the party or parties responsible to provide these services to the BSEA.

Legal Analysis:

In my legal analysis I agree with the arguments presented by Brockton regarding Joinder and adopt the reasoning and conclusions reached by my brother Hearing Officer William Crane in his Ruling of Medford Public Schools Motion to Join and Decision in In Re; Medford Public Schools , BSEA # 01-3941.

Federal and Massachusetts special education law mandate that each eligible child receive the special education services and related services necessary to meet the individual needs of the child. Provision of a free appropriate public education which is reasonably calculated to maximize the Student’s potential must occur in the least restrictive environment appropriate. 20 U.S.C. 1412; David D. v. Dartmouth School Committee , 775 F.2d 411 (1985). Massachusetts places the responsibility of providing such services in the local school districts where the particular student resides. M.G.L. c. 71B §3.

Any dispute regarding special education and related services in Massachusetts is handled through the Bureau of Special Education Appeals. M.G.L. c. 71B §3; 603 CMR 28.08(5) and (6); see also 20 USC 1415 (f) et seq. and 34 CFR 300.507, et seq. establishing the creation of an appeal mechanism to resolve disputes regarding special education law. Hearing Officers are therefore charged with the responsibility to order the necessary special education placement and related services required by a Student consistent with federal and state laws and regulations. 20 U.S.C. 1415 (f) et seq.; 34 CFR 300.511; M.G.L. c. 71B §3; 603 CMR 28.08(5) and (6); see also the Hearing Rules for Special Education Appeals . A decision rendered by the BSEA is a final agency decision (ie., not subject to further administrative review), appealable only in a court with pertinent jurisdiction. 20 U.S.C. 1415 (I).

In September of 2000 Massachusetts promulgated new Department of Education Regulations governing special education. The Regulations known as the Chapter 766 Regulations, finalized in January of 2001, contained language which grant the BSEA authority to resolve special education disputes involving state agencies, in accordance with the rules, regulations and policies of the respective agencies and consistent with federal law.

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 Bureau of Special Education Appeals, located with the Department [of Education], shall conduct mediations and hearings to resolve such disputes. The jurisdiction of the Bureau of Special Education Appeals over state agencies, however, shall be exercised consistent with 34 CFR 300.142(a). 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 Department of Social Services, the Department of Mental Retardation, the Department of Mental Health, the Department of Public Health, or any other state agency or program, in addition to the IEP services to be provided by the school committee. 603 CMR 28.08(3); Chapter 159, section 162 of the Acts of 2000, amending MGL c. 71B, s. 3 (hereafter, Section 162).

The Statutory language embodied in the Regulation Supra grants the BSEA’s Hearing Officer authority to order a state agency to provide services where appropriate. The language in 603 CMR 28.08(3) specifically includes the Department of Social Services. The authority of the BSEA Hearing Officer must be exercised consistent with the particular agency’s statutory, regulatory and policy standards regarding the individual who qualifies to receive services by that agency, as well as the type of services that may be rendered.

Massachusetts Hearing Rules for Special Education Appeals, 603 CMR 28.00 et seq., the IDEA due process procedures and the Massachusetts Administrative Procedure Act, M.G.L. c. 30A set the standard for parties to file a motion with the Hearing Officer requesting that action be taken inclusive of petitions for Joinder. Rule 1 F of the Hearing Rules for Special Education Appeals states that:

Upon written request of a party, a Hearing Officer may allow for the joinder of a person 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. Factors in determination of joinder are: the risks 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.

Contrary to DSS’ assertion, and since Brockton is an appropriate party in this matter, I find that Brockton has standing to request joinder of the DSS as a necessary party to this proceeding. For the reasons stated above I find that the BSEA has the authority to 1) join the DSS and 2) order the provision of services consistent with its rules, regulations and policies should the facts of this case be consistent with such a finding at an evidentiary hearing. Joinder of DSS is appropriate at this juncture.

DSS admits that while it has no care or custody of the Student at the present time, the Student is the subject of an “open case” with the DSS as well as subject to an open CHINS petition. In fact, DSS funded a residential placement for the Student during the 1999-2000 school year. It is not clear whether said residential placement was ordered by a Court or whether the decision to place him there came from the DSS. Nevertheless, at least once before the agency offered said placement. The DSS Regulations at 110 CMR 401 (2) establish that “any person located within the Commonwealth of Massachusetts can request social services from DSS which the Parent asserts she has requested. A decision by DSS to offer voluntary services to eligible applicants depends on the availability of the services and the client’s willingness to pay a portion of the cost of the service according to a sliding fee unless the particular service is not subject to the fee. 110 CMR 4.05 (1) The fee is assessed when a child enters out of home care on a voluntary basis as per 110 CMR 4.08A (1) but may be waived for qualifying individuals upon request. 110 CMR 4.08A (5). Except that where “the gross family income is at or below 150% of the federal poverty level, the Department will not charge a fee for substitute care.” See DSS’s Voluntary Placement Agreement Form paragraph 14. Furthermore, a Parent may request and the DSS may enter into a voluntary agreement for services inclusive of provision of substitute care for a child. 110 CMR 4.10. A voluntary placement agreement establishes a specific termination date six months from the date of execution and requires periodic foster care reviews at least every six months. See DSS’s Voluntary Placement Agreement Form paragraphs 12, 15 and 4.

DSS argues that it is within its discretion whether to provide residential services and therefore it cannot be ordered to provide residential services to the Student. If it were ordered to do so, the fact that it has to assess the family a fee is contrary to special education laws requiring that educational services to a Student be free of cost to the family. This argument is not persuasive. Firstly, DSS has an open case meaning that the family is eligible for services. The Webster’s Ninth New Collegiate Dictionary provides three definitions of discretion which I find pertinent here. It defines it as the ability to make responsible decisions, as the ability to make an individual choice or judgement, and as the power of free decision or latitude within certain legal bounds. The language in the DSS’s regulation seems consistent with the aforementioned definitions. DSS failed to present any information regarding the family’s possible exemption to pay any fee or their ability to qualify for a waiver, which falls within the discretion of DSS. Also, DSS presented no information regarding the arrangements made when the child was first placed by it residentially a year ago. Were the Parent/ Student to be disqualified from paying, DSS may still waive any contribution and fund the full placement. Therefore, it is possible for DSS to place a child residentially at no cost to the family resolving any possible contradiction with special education law.

The DSS Regulations presented do not preclude DSS from placing a child outside the home and leaving the educational decision making power with the parent. Educational decision making power does not always transfer to the DSS where the parent enters into a voluntary agreement, especially where there are no protective issues. Furthermore, educational decision making power goes to the Parent’s ability to accept or reject a program, a placement, agree or not to evaluations, etc. Placement of a student pursuant to a BSEA order can occur even where the educational decision making power is with someone other than the Parent.

DSS also argued that even under a voluntary placement agreement the parent would lose custody if such placement exceeded 12 months in violation of the parents’/student’s rights under federal and state special education law. DSS relies on Federal welfare laws requiring that DSS pursue permanency hearings annually for all children in placement. 42 U.S.C. §675; M.G.L. c.119 § 29B and M.G.L. c. 119 § 23 C. This argument is not persuasive under the facts of this case. Under special education law a student’s Team must gather at minimum annually to determine the program and placement recommended for a student. 603 CMR 28:04 (3). The student’s progress is evaluated and a recommendation is then made by a Team regarding the appropriate services for the following year. Id. Before me is only the issue of placement of the Student for the 2001-2002 school year, a period less than one year. There are also no compensatory claims pending in this case. Therefore, any decision issued in this case would involve a period of no more than and very likely less than one year.

Lastly, I am persuaded that joinder is timely contrary to DSS’ argument. Judicial expediency would also support a joinder at this time. If all necessary parties are not before the BSEA another hearing involving the same factual information would have to be conducted if a conclusion were reached that the Student warranted a residential placement but that Brockton was not responsible for the residential portion. The DSS would be entitled to an opportunity to defend its position before it could be ordered to render a service. Although the facts of Student In Re:Barnstable Public Schools, BSEA # 00-0437 (October 5, 1999) can be distinguished from the case at hand, it is clear that unless all the necessary parties are present the matter cannot be adjudicated. In BSEA # 00-0437 the parent was left without a remedy when a motion for summary judgement was granted denying the parents’ motion for evidentiary hearing. The school district against whom the parents filed the original claim was not the appropriate party and no joinder of the appropriate school district was requested. After appeal to State Superior Court, the case was remanded to the BSEA for hearing against the school system missing in the first hearing providing that school system an opportunity to be heard.

Ultimately, a decision on whether residential services are the responsibility of the local school district or whether the DSS will be ultimately responsible to provide the Student with support or services will be determined at the completion of a full evidentiary hearing on the merits. While the DSS’ statute, regulations and policies may give the agency discretion regarding location and length of a particular placement, it does not forbid the agency from making such placements. Nothing in the laws, regulations or policies governing DSS preclude it from providing residential placement to a client at no cost to the family. Therefore, a BSEA Hearing Officer would have the authority to order DSS to provide residential services in an appropriate case.

ORDER

Brockton’s Motion to Join the DSS is hereby ALLOWED. The DSS is joined as a necessary party to this proceeding.

By the Hearing Officer,

Rosa I. Figueroa

Dated: September 26, 2001


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