Student v Northampton Public Schools – BSEA #04-2633



<br /> Student v Northampton Public Schools – BSEA #04-2633<br />

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

Student v. Northampton Public Schools

BSEA # 04-2633

RULING ON CROSS MOTIONS FOR SUMMARY JUDGMENT and PARENT’S MOTION TO CONSIDER NEW EVIDENCE

This ruling is issued pursuant to the Parties’ Cross Motions for Summary Judgment, received by the BSEA on March 12, 2004 (Parent’s) and March 17, 2004 (School’s). On April 6, 2004, Parent requested that the Hearing Officer consider additional evidence. Northampton requested an extension of time to respond to Parent’s request and was granted an extension until April 16, 2004. Northampton

After careful consideration of the Cross Motions for Summary Judgment, I hereby DENY Parent’s Motion for Summary Judgment and ALLOW School’s Motion for Summary Judgment. I hereby ALLOW Parent’s Motion for Consideration of Additional Evidence.

PROCEDURAL HISTORY

The Parents filed a Request for Hearing on December 18, 2003 seeking enforcement of a settlement agreement and challenging Northampton’s alleged failure to draft an IEP for the 2004-2005 school year. The matter was initially scheduled for a pre-hearing conference on January 29, 2004 and was continued until February 13, 2004 when a telephone conference call was held. During the February 13 conference call the Parties informed the Hearing Officer that the only remaining issue was the Student’s residency and that Northampton had taken the position that Student was no longer a resident of Northampton because she was residing in South Yarmouth in order to attend the Riverview School. The Parties agreed to file Cross Motions for Summary Judgment and that the issue would be determined based upon the documents unless the Hearing Officer required clarification and scheduled a conference call. On April 6, 2004, Parent filed a request that the Hearing Officer consider additional evidence. Northampton requested an extension of time to respond to Parent’s request and was given a deadline of April 16, 2004 to respond. Northampton sent its opposition to Parent’s request to consider additional evidence on April 16, 2004.

FACTS1

Student moved to Northampton in early 2002. She had previously lived in New Hampshire and had been home schooled and attended a one-room schoolhouse at various times. On June 18, 2003 the parties were scheduled to proceed to a hearing at the BSEA (BSEA # 03-0537). Instead, the Parties entered a settlement agreement that provided for the payment of $22,000.00 to the Parent to be used toward the Student’s tuition as a residential student at the Riverview School. Parent signed the agreement on July 28, 2003 and Dr. Babcock, of the Northampton Public Schools, signed the agreement on August 4, 2003. (S-5) When Dr. Jurgenson contacted the Riverview School on or about August 23, 2003 to schedule a Team meeting, Riverview School staff informed him there was no available opening for Student and that she was on their waiting list. (Jurgenson, paragraph 29) Riverview staff told Dr. Jurgenson they would contact him when an opening was available.

Mother continued to home school Student. In late October she contacted the president of Riverview who informed her there were no residential vacancies for Student, but she could be enrolled as a day student. On or about November 21, 2003, Parent’s newly retained counsel telephoned Northampton’s attorney and informed her that there was a day placement available for Student at Riverview. She indicated that Student’s mother was willing to rent an apartment in Yarmouth to enable Student to attend Riverview. Parent’s counsel acknowledged case law indicating that Student’s move would be a change of residence, but stated that it was distinguishable from said case law because Parent was not making a unilateral placement, but was attempting to implement a settlement with the district. Northampton’s counsel responded in a letter dated November 26, 2003 indicating that the terms of the settlement agreement did not provide for placement as a day student and maintaining that there is precedent for the conclusion that if Mother and Student move to the Cape their residency would change from Northampton to the Cape. Northampton’s counsel indicated the School was willing to amend portions of the settlement agreement to reflect a change in dollar amount and making the portion of the agreement that called for residential placement null and void.

The Parties were unable to reach agreement regarding the provisions of a modified settlement agreement. Parent filed a civil action in the Hampshire County Superior Court and the Court issued a Preliminary Injunction on January 2, 2004. The Preliminary Injunction ordered Northampton to write an IEP (on or before January 16, 2004) providing for Student’s placement in the day program at the Riverview School until the end of the 2003-2004 academic year. It limited Northampton’s obligation to a pro-rata portion of the amount agreed upon on August 4, 2003, $14, 000.00. Student is currently attending Riverview as a day student. She and Mother reside in a cottage in South Yarmouth pursuant to a six month lease (December 1, 2003 through May 30, 2004.) Family members remain in the family home in Northampton and Student and Mother frequently visit Northampton on weekends.

ISSUE: Whether Student is a resident of Northampton or South Yarmouth for purposes of determining which LEA is responsible for her education.

SUMMARY JUDGMENT STANDARD

Under the Adjudicatory Rules of Practice and Procedure, a Motion for Summary Decision is made “[W]hen a Party is of the opinion there is no genuine issue of fact relating to all or part of a claim or defense and he is entitled to prevail as a matter of law.” The regulation indicates that a party’s motion may be filed with our without supporting affidavits. If the Motion is granted as to part of the claim which is not dispositive of the entire case, proceedings will be held on the remaining issues. See 801 C.M.R. 1.01(7)(h).

FINDINGS/CONCLUSIONS

There is no dispute that Student and her mother have been living in South Yarmouth at least every Monday through Friday to enable Student to attend the Riverview School in East Sandwich, Massachusetts. There is also no dispute that Mother continues to maintain a residence in Northampton and has informed Northampton that she continues to spend some of her weekends in Northampton and intends to one day return to living in Northampton. Parent argues that she and Student continue to actually reside in Northampton because they are temporarily renting a cottage to enable Student to attend the Riverview day program and because they maintain a home in Northampton. Northampton argues that Student sleeps in South Yarmouth five nights per week to enable her to attend a school that she would otherwise be unable to attend and is therefore an actual resident of South Yarmouth. The law supports Northampton’s position.

Under the IDEA, a local educational agency shall provide that all children residing within the jurisdiction of the local education agency … who are disabled … and are in need of special education and related services will be identified, located and evaluated… 20 U.S.C. § 1414(a)(1)(a); 34 C.F.R. § 300.220 (emphasis added). Under M.G.L. c. 76, § 5, “[E]very person shall have the right to attend the public schools of the town where he actually resides (emphasis added).”

The BSEA has consistently held that residency for school attendance does not turn on intention to reside in the school district, but simply on where the student is currently living. See Andrew M. v. Beverly Public Schools , BSEA # 96-3249 (1996). In Andrew M ., Student and his Parents were residents of Beverly, Massachusetts until they temporarily moved to Billerica to enable Student to attend a school that was closer to Billerica than to Beverly. Billerica paid for and provided for Student’s special education and transportation. Student, his mother, and his sibling then moved to West Los Angeles to enable Student’s participation in the Lovaas program at UCLA. Student’s father returned to the family home in Beverly and the parents intended that the entire family would return to Beverly upon Student’s completion of the Lovaas program. Parents argued that Student was not a resident of California because he only relocated to take part in a treatment plan due to his special needs and did not intend to change his residence or domicile. Beverly argued that responsibility for educational services is based upon residency as opposed to domicile and since Student was a resident of California, Beverly was not the district responsible for Student’s special education programming. The Hearing Officer agreed with Beverly and held that “programmatic responsibility lies with the school district where the child resides.” She further found, “To read a domicile requirement into the Act [the IDEA] would be inconsistent with the statute’s plain language.” See Andrew M. v. Beverly Public Schools (1996) Also see In re: Barnstable Public Schools BSEA # 00-0437 (1999) and Peter B. v. Duxbury Schools BSEA # 88-1188 (1988) (holding that a student’s actual, physical residence controlled whether or not a school system was responsible for providing the student’s special education services.)

In the current case, Student, like Andrew M. moved to another community to attend a particular school. As a result of the move, Student currently resides in South Yarmouth. Regardless of whether Student intends to return to Northampton at some time, she undisputedly resides in South Yarmouth. It is irrelevant to the determination of residency that Student frequently weekends in Northampton or that her mother intends to return to Northampton permanently at some time in the future. Since Student’s actual physical residence on school days is South Yarmouth, she is a resident of South Yarmouth and South Yarmouth is responsible to provide her special education services.

The Massachusetts Superior Court recently decided a case involving the residence of students living in Boston apartments with one parent during the school week in order to attend Boston Latin and returning on weekends with that parent to suburban homes where the other parent and siblings remained. Lydia D. v. Thomas W. Payzant , Sup. Ct. No. 2003 WL 23213141 (Mass.Super. 2003). The facts in that case are similar to the case at bar in that Student and her mother are living in a rented cottage to enable Student to attend the Riverview School which she could not attend if she remained in Northampton. Student and her mother frequently visit their home and family in Northampton on weekends. The Lydia D. court found that M.G.L. c. 76, § 5 does not require an entire family to “actually reside” in a town in order for the children to attend the public schools in that town. Therefore, Parent’s argument in the instant case that student remains a resident of Northampton because family members continue to reside in the Northampton home and Student and Mother frequently visit the Northampton home is unpersuasive. The superior court further found that “Domicile and residence are established by both a physical presence and an intent to remain, at least for a while.” Id . at 9. In the current case, Student is physically present and intends to remain in South Yarmouth, at least for a while, specifically at least until the lease expires on May 30, 2004. Therefore, for purposes of determining which school district is responsible to provide for Student’s special education services, the Student is a resident of South Yarmouth.

Parent argues it would be inequitable to determine that Student is now a resident of South Yarmouth because Northampton delayed placing Student in the Riverview residential placement pursuant to their settlement agreement which resulted in her losing the placement, missing several months of school and compelling Mother to move to South Yarmouth so that Student could attend the day program. This argument is unpersuasive and unsupported by the documents submitted in support of Parent’s Motion for Summary Judgment. Parent’s counsel, in Exhibit F states, “By way of historical clarity, permit me to emphasize that the lack of timely matriculation at Riverview School was nobody’s fault.” Additionally, the exhibits show that during all communications regarding the possibility of placing Student at the Riverview School as a day student Northampton presented its position that Student’s residence would change when she moved to South Yarmouth. Parent was on notice of Northampton’s interpretation of the law and its position with respect to Student’s residency when she decided to relocate to South Yarmouth. Her argument that there is any inequity in considering Student to be a resident of South Yarmouth is unpersuasive. Additionally, Student is not harmed by being deemed a resident of South Yarmouth. Nothing precludes the Parent from contacting the local educational agency which serves South Yarmouth and requesting that its Team convene to address Student’s needs for the summer 2004 and 2004-2005 school year.

PARENT’S MOTION TO CONSIDER NEW EVIDENCE

Parent asks the Hearing Officer to consider new evidence, namely that a residential opening has become available at Riverview School. Parent argues that this is relevant because it would enable Northampton to “fully honor its Settlement contract with the Parent.” Northampton opposes Parent’s request because it argues that South Yarmouth is responsible for Student’s education and Parent should notify South Yarmouth of the residential opening. Additionally, Northampton argues that Student is not currently placed at Riverview pursuant to a settlement agreement, but pursuant to a court order.

I hereby ALLOW Parent’s request to consider the “new evidence” that there is a residential opening at the Riverview School. However, I find this information to be irrelevant to the determination of Student’s residency. Parent sought a court order with respect to the enforcement of its settlement agreement after being informed that the BSEA does not have jurisdiction to interpret or enforce settlement agreements. The court has issued an order with respect to the settlement agreement with which Northampton has complied. If the Parent is seeking further enforcement of the settlement agreement, the BSEA is not the appropriate forum. The fact that there is now a residential opening at Riverview is irrelevant to the determination of Student’s residency, as she continues to reside with her Mother in South Yarmouth.

ORDER

School’s Motion for Summary Judgment is hereby ALLOWED. Parent’s Motion for Summary Judgment is hereby DENIED. Parent’s Motion to Consider Additional Evidence was ALLOWED, however, given that the evidence was irrelevant, it did not impact the outcome of the case.

By the Hearing Officer,

_____________________________________

Catherine M. Putney-Yaceshyn

Dated: April 23, 2004


1

The facts are assumed for the purpose of this motion only and are gleaned from the memoranda and supporting exhibits and affidavits submitted by the parties in connection with their cross motions for summary judgment.


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