Wachusett Regional School District – BSEA # 11-6533(a)



<br /> Wachusett Regional School District – BSEA # 11-6533(a)<br />

COMMONWEALTH OF MASSACHUSETTS

DIVISION OF ADMINISTRATIVE LAW APPEALS

BUREAU OF SPECIAL EDUCATION APPEALS

In Re: Wachusett Regional School District

BSEA #11-6533

ADDENDUM TO RULING ON MOTION FOR SUMMARY JUDGMENT

This matter comes before the Bureau of Special Education Appeals on the Motion of the Wachusett Regional School District (hereinafter “Wachusett”) to reconsider the BSEA Ruling of July 8, 2011 which upheld the DESE assignment of fiscal and programmatic responsibility for Student Q. to Wachusett: Typically dispositive rulings and decisions made by the BSEA are not subject to reconsideration. In this matter, however, due to a communication mishap Wachusett did not receive a critical pleading, the DESE’s Motion for Summary Judgment, until after the July 8, 2011 BSEA Ruling. The BSEA stayed the July 8th Ruling and permitted Wachusett to offer any additional original arguments relevant to the DESE’s Cross-Motion for Summary Judgment. (Administrative Record, July 21, 2011.)

Wachusett submitted an Opposition to the DESE’s Motion for Summary Judgment on August 2, 2011. The DESE replied on August 3, 2011. Wachusett filed a “sur reply” on August 8, 2011. Berlin-Boylston addressed the Wachusett submission on August 9, 2011 arguing that all points raised in Wachusett’s Opposition had been thoroughly argued by the parties in previous submissions and addressed in the original BSEA Ruling of July 8, 2011. I agree. After careful consideration of the post-ruling submissions of the parties, I find that Wachusett’s “additional” arguments insofar as they are pertinent to the limited issue presented here, were raised and thoroughly briefed by the parties earlier and were addressed in the July 8, 2011 Ruling. Furthermore, Wachusetts’ renewed arguments that Berlin-Boylston “should have” sought DESE approval for Student Q.’s placement and that DESE “should have” approved Student Q.’s individual placement simply do not reflect the facts as they are. In appeals of LEA assignments the BSEA’s jurisdiction does not include correcting errors of procedure, tactics or substantive educational merit even were they to be proved, which they have not been in this matter. 603 CMR 28.10 (9). Instead the BSEA looks at the facts pertaining to residence that were presented to the DESE in a petitioner’s initial request for an “LEA assignment”, and determines on the strength of that information whether the DESE correctly applied the law.

Applying the plain English meaning of the language used in both the “move-in” statute, M.G.L.c71B§5, and the pertinent DESE regulations, 603 CMR 28.09; 603 CMR 28.02(1) yields a consistent result. DiGregorio v. Registry of Motor Vehicles , 78 Mass. App. Ct. 775, 780, 782 (2011). See discussion at “Ruling on Motion for Summary Judgment, BSEA 22-6533, July 8, 2011. The “move-in” provision applies when a student is attending a DESE approved program or placement. Student Q.’s placement was not DESE approved when she moved to the Wachusett school district. DESE’s interpretation of the unambiguous statutory language in concert with the congruent DESE regulations, and the application of that law to the undisputed facts here, was reasonable, not arbitrary, and not manifestly unjust.

ORDER

The Ruling on Cross-Motions for Summary Judgment of July 8, 2011 is confirmed.

The Motion of the Wachusett Regional School District for Summary Judgment in its favor is DENIED .

The Motions of the DESE and the Berlin-Boylston’s School District for Summary Judgment in their respective favors are GRANTED .

By the Hearing Officer

__________________________

Dated: September 13, 2011


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