Student v. Dighton Rehoboth Public Schools and Fall River Public Schools – BSEA #07-0756



<br /> Student v. Dighton-Rehoboth Public Schools and Fall River Public Schools – BSEA #07-0756<br />

COMMONWEALTH OF MASSACHUSETTS

SPECIAL EDUCATION APPEALS

In Re: Student v. Dighton-Rehoboth Public Schools & Fall River Public Schools

BSEA # 07-0756

Ruling on Fall River Public Schools’ Motion to Dismiss, Dighton-Rehoboth Public Schools’ Opposition To the Motion to Dismiss and Parents’ Opposition To Fall River’s Motion to Dismiss

On September 14, 2006, Fall River Public Schools (FR) filed a Motion to Dismiss. Dighton-Rehoboth Public Schools (DR) filed an Opposition to Fall River’s Motion to Dismiss on September 20, 2006. Parents then filed an Opposition to Fall River’s Motion to Dismiss on September 25, 2006.

Facts:

1. Student is a minor whose parents are divorced and share legal custody. Under the divorce decree, “Mother is the primary care parent with whom children shall reside.” (FR Exhibit A). Until July 2004, both parents resided in FR, MA.

2. Student started the 2002-2003 school year in FR. At a Team meeting on September 30, 2002, FR found Student eligible to receive special education services due to a specific learning disability. The diagnosis and specific findings were the result of an independent evaluation obtained by Parents. FR drafted an IEP proposing Language Arts, Math, Science and Social Studies support in an inclusion program as well as one-to-one individual reading instruction daily. Parents took no action regarding the proposed program and placement in FR.

3. On or about November 2002, Parents unilaterally placed Student at the Wolf School, a private school in Providence, Rhode Island. Student remained at the Wolf School until June 2005. Between November 2002 and June 2005, Parents did not seek reimbursement from FR.

4. In July 2004, Mother moved to Dighton, MA, while Father remained a resident of Fall River.

5. In May 2005, Parents decided to place Student at the Eagle Hill School for the 2005-2006 school year. They notified DR of their decision to place Student out of district. Student began attending classes at Eagle Hill School in September 2005. Parents have again unilaterally placed Student at Eagle Hill for the 2006-2007 school year.

6. Student resides with Mother and his stepfather in Dighton. Throughout the period between 2002 and 2006 Student has spent time with each parent. He spends four days per month at his Father’s house in Fall River.1

7. On or about February 28, 2006, Student’s Team was convened by DR to discuss Student’s placement.

8. Parents filed a Hearing Request with the BSEA in the above referenced matter on August 11, 2006.

9. Following the Resolution Meeting under the IDEA 2004, held on or about August 31, 20062 , DR requested that the Department of Education (DOE) issue an LEA assignment to address cost share responsibilities for Student between FR and DR.

Position of the Parties :

FR argues that it does not have any duty to share in the responsibility of funding Student’s placement in Eagle Hill. In making this argument FR relies on the child custody section of Parents’ divorce agreement, which states in pertinent part:

The Parties acknowledge that they shall have shared legal custody… The Wife shall be the primary care parent with whom the children shall reside. (FR Exhibit A)

As a result of the custody disposition referenced above, physical custody of Student is with Mother. FR therefore asserts that under 603 C.M.R. 28.10 (8)(c)(5), DR is solely financially responsible for Student. According to FR, since Mother was living in Dighton when Student started attending Eagle Hill, and since Mother had physical custody of Student and he resided with her, DR would be responsible pursuant to 603 C.M.R. 28.10(8)(c)(5), which states that in situations where a student’s:

… parents live in two separate school districts, such school districts shall be jointly responsible for fulfilling the requirements of 603 C.M.R. 28.00 except if the student actually resided with either parent immediately prior to going into a living situation described in 603 C.M.R. 28.10(3)or (4) or the parents are divorced or separated and one parent has sole physical custody, then the school district where the student resided with the parent or the school district of the parent who has sole physical custody shall be responsible…”

Student only had visitation with his father for two days every two-week period. FR argues that the aforementioned regulations are applicable to the facts here and since it would therefore not be responsible for Student, it should be dismissed as a party in the case at bar. In making this argument, FR relies in the Decision issued on In Re: Fall River Public Schools , BSEA # 06-4240 (May 12, 2006)3 .

FR also argues that Parents placed Student at Eagle Hill, which is not an approved special education school in Massachusetts, and that since Student had been accepted at the Learning Prep School and DR had offered to place Student there, Parents are not entitled to reimbursement. Lastly, FR asserts that any claims for compensatory education are time barred by the statute of limitations. After being presented with an IEP in September 2002, on which Parents took no action, Parents withdrew Student from FR in November 2002 and unilaterally placed him in a private school in Rhode Island. In Parents’ Request for Hearing the remedy sought by Parents is “reimbursement for tuition and expenses paid by Parents for the 2005-2006 and the 2006-2007 school years” and the request states that “the requested resolution is warranted in light of both Districts’ failures to conduct team meetings and to propose appropriate IEP’s on a timely basis.”

DR and Parents request that the BSEA decline to rule on Fall River’s Motion to Dismiss until the DOE makes an assignment of responsibility pursuant to 603 CMR 28(8). They assert that if this argument is not persuasive, then the BSEA should deny FR’s Motion to Dismiss because Parents share responsibility for Student who has lived with both Parents. According to DR and Parents, both school districts share programmatic and financial responsibility for Student under 28 CMR 28.10(2)(a)(2)4 . Furthermore, DR states that 603 CMR 28.10(3)(b) provides that the district where parents reside shall bear the fiscal and programmatic responsibility when an eligible Student whose IEP calls for services to be rendered out of district and Student lives and receives special education services in a residential program. Both DR and Parents argue that 28 CMR 28.10(8) is not applicable under the facts of this case.

DR also states that the facts in the instant case are distinguishable from those in BSEA # 06-4240, citing the court in George H. and Irene L. Walker Home for Children, Inc. v. Franklin , 416 Mass. 291, 621 N.E. 2d 376 (1993)5 , because Parents here share physical custody even if the primary residence of Student is with Mother.

Parents further argue that Eagle Hills’ status as an unapproved special education school in Massachusetts is insufficient to deny Parents reimbursement. See Florence County School District Four v. Carter , 510 U.S. 7 (1993); Board of Education of the Pawling Central School District , 43 IDELR 207 (2004). In making this argument, Parents rely on Melanie v. Concord-Carlisle Regional School District , 40 IDELR 202 (2003) and assert that in both instances Parents attempted placement in an approved program before turning to an unapproved school.

Lastly, Parents state that Parents’ right to reimbursement is not barred by 20 USC

§1412 (a)(10)(c) because FR failed to conduct any team meetings to initiate any action to monitor Student’s progress when he was withdrawn by Parents and enrolled at the Wolf School in 2002 even though he had been found eligible to receive special education services by FR.6

Conclusions :

The sole issue before me is whether FR should be dismissed as a party in the case at bar. I find FR’s argument regarding Eagle Hill’s status as an unapproved school to be irrelevant to the narrow issue before me and therefore, decline to address it at this stage of the process.

Rule 1J of The Hearing Rules for Special Education Appeals allow joinder of a party to a BSEA action

In cases where complete relief cannot be granted among those who are already parties, or if the party 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 its absence. Factors considered in determination of joinder are: 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 judgment entered in the proposed party’s absence; and the existence of an alternative forum to resolve the issues.

Similarly, a party seeking to be dismissed must show that it has no interest relating to the subject matter of the case and that therefore, the case can be disposed of in its absence. See Horizon Bank and Trust Co. v. Flaherty , 309 F.Supp.2d 178 (D.Mass., 2004), (discussing the question of dismissal of the Commonwealth as an indispensable party under Rule 19 of the Federal Rules of Civil Procedure which the Court saw as a “pragmatic, case-specific examination of whether resolution of a case in the absence of a particular party comports with the Federal Rules’ twin goals of fairness and efficiency .”) In Horizon Bank and Trust Co. v. Flaherty , the Court reasoned that joinder of a party under Rule 19 depended on whether the party sought to be joined was first, necessary, and second, whether joinder was feasible. First and foremost to the issue of participation in a proceeding is the question of whether the person’s participation is necessary. If it is not, assuming that the person’s presence is not indispensable, then the person need not participate as a party. If the person is already a party then the same analysis must be conducted in determining whether that party can be dismissed with or without prejudice7 .

For the purpose of determining whether FR can be dismissed I must first ascertain whether its presence is necessary. To do so, the issue of whether FR bears any fiscal or programmatic responsibility for Student must be decided. In resolving this issue I find appropriate guidance in 603 C.M.R. 28.10(8)(c)5 directing the Department of Education to use certain criteria when assigning a city, town or school district responsibility for students who are in living situations described in 603 CMR 28.10(3)(b)8 among others. Said section 28.10(8)(c)5 states:

5. If the student’s parents live in two different school districts, such school districts shall be jointly responsible for fulfilling the requirements of 603 CMR 28.00 except if the student actually resided with either parent immediately prior to going into a living situation described in 603 CMR 28.10(3) or (4) or the parents are divorced or separated and one parent has sole physical custody, then the school district where the student resided with the parent or the school district of the parent who has sole physical custody shall be responsible and shall remain responsible in the event the student goes into the care or custody of a state agency. [Emphasis supplied]

In applying the regulation supra to the case at bar, the relevant facts presented by the Parties would seem to be as follow: Student is currently in a residential placement; his parents are divorced; both parents share legal custody and enjoy visitation with Student, but physical custody is solely with Mother as per FR Exhibit A; and, Mother resided in DR in 2004, when Parents placed Student unilaterally in Eagle Hill, a residential facility. While 603 C.M.R. 28.10(8)(c)5 does not contemplate the exact fact pattern found here, in the sense that Student was placed in the residential program by Parents as opposed to under an IEP by a school district, it appears likely that this is the relevant regulation in determining whether FR bears fiscal and or programmatic responsibility for Student consistent with George H. and Irene L. Walker Home for Children, Inc. v. Franklin , 416 Mass. 291, 296, 621 N.E. 2d 376 (1993).9

Since the controlling regulation, 603 C.M.R. 28.10(8), Assignment of School District Responsibility, falls within the purview of the DOE, and since DR requested said assignment with the DOE following the resolution session in the case at bar, I must defer a Ruling on FR’s Motion to dismiss as a party pending DOE’s assignment of school district responsibility.

Assuming that the facts presented to DOE are consistent with those presented by the Parties when filing this motion, and in light of the relevant case-law and applicable Massachusetts regulations, it would appear likely that FR will not be found to be a necessary party and that it will be dismissed.

Order :

1. The Ruling on FR’s Motion to Dismiss as a Party is DEFERRED pending DOE’s determination on LEA Assignment . DR’s and Parents’ Motions in Opposition to FR’s Motion to Dismiss are GRANTED In Part to the extent that the final ruling is deferred.

2. The Parties are ordered to submit by October 10, 2006, their availability to proceed to Hearing in mid November 2006. This assumes that DOE enters its determination by the middle of October, which will have provided DOE with over one month to issue its determination.

3. All discovery must be completed by November 2, 2006.

So Ordered by the Hearing Officer,

________________________________

Rosa I. Figueroa

Dated: October 3, 2006


1

Since Student is in a residential placement it is reasonable to assume that he goes home on weekends, so that when school is in session he is likely to spend every other weekend with Mother and every other weekend with Father.


2

A letter from Jeffrey M. Sankey, Esq., attorney for Parents, dated August 8, 2006, contained in the administrative record provides the date of the Resolution Meeting. I take administrative notice of this date for the purpose of issuing this ruling.


3

Ruling ordering FR to assume sole fiscal responsibility for a student residing in a residential nursing home, whose divorced parents resided in two different towns, but the mother had sole physical custody and the student resided with her in Fall River immediately prior to a hospitalization after which the student entered a pediatric nursing home.


4

“[W]hen a student who requires an out of district placement to implement his or her IEP lives with both of his or her parents during the school year, irrespective of school vacation periods, and the parents live in two different Massachusetts school districts, the school districts where the parents reside shall be equally responsible for fulfilling the requirements of 603 CMR 28.00.” 28 CMR 28.10(2)(a)(2).


5

“The Court in George H. and Irene L. Walker Home for Children, Inc. v. Franklin , 416 Mass. 291, 621 N.E. 2d 376 (1993), clarified that a minor child’s domicile or residence generally is the same as that of the parent who possesses physical custody of the child.” In Re: Fall River Public Schools , BSEA # 06-4240 (Figueroa, May 12, 2006).


6

Parents state that they are not seeking any reimbursement from FR regarding tuition paid by them to the Wolf School.


7

See New England Tel. & Tel. Co. v. International Broth. Of Elec. Workers , … 402 F.Supp. 1032 (D.Mass. 1975), dismissing a party with prejudice.


8

“School district responsibility based on residence of parent(s) or legal guardian. The school district where the parent(s) or legal guardian resides shall have both programmatic and financial responsibility under the following circumstances: …
(b) When a student whose IEP requires an out of district placement lives and receives special education services at a special education residential school…” 603 CMR 28.10(3)(b).


9

See also In Re: Fall River Public Schools , BSEA # 06-4240 (May 12, 2006), reviewing a DOE’s assignment of fiscal and programmatic responsibility, quoting Walker in reasoning that,

MGL c. 76 §5 assures an individual’s right to attend the public school of the town where that individual resides. When addressing residency, the words residence and domicile have been interpreted to be synonymous when used in statutes involving residency requirements. Watson v. Town of Lexington 1993 WL 818774, 1 Mas L. Reptr. 261 (Mass. Super. 1993); See Hershkoff v. Board of Registrars of Voters of Worcester , 366 Mass. 570, 576, 321 N. E. 2d 656 (1974); Teel v. Hamilton Wenham Regional School District , 13 Mass. App. Ct. 345, 349, 433 N.E. 2d 907 (1982). A domicile has been defined as the “place where a person dwells and which is the center of [an individual’s] domestic, social and civil life”, the place where that person has his home. Dane v. Board of Registrars of Voters of Concord , 374 Mass. 152, 161-162, 371 N.E. 2d 1358 (1978); Hershkoff v. Board of Registrars of Voters of Worcester , 366 Mass 570 (1974). In this regard, a minor who has not been emancipated is “generally said to lack capacity to acquire such a domicile of choice.” Hershkoff, 366 Mass. at 577. When residence issues involve children, the Court in George H. and Irene L. Walker Home for Children, Inc. v. Franklin , 416 Mass. 291, 296, 621 N.E. 2d 376 (1993) clarified that a minor child’s domicile or residence generally is the same as that of the parent who possesses physical custody of the child. See also, Lydia D. et al. v. Thomas W. Payzant et al. , 17 Mass. L. Rep. 272 (2003); 2003 Mass. Super. LEXIS 471.


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