Westborough Public Schools – BSEA # 12-0437, 12-0551, 11-7865



<br /> Westborough Public Schools – BSEA # 12-0437, 12-0551, 11-7865<br />

COMMONWEALTH OF MASSACHUSETTS

DIVISION OF ADMINISTRATIVE LAW APPEALS

BUREAU OF SPECIAL EDUCATION APPEALS

IN RE: Westborough Public Schools & DESE & Middleborough Public Schools

BSEA #12-0437 / 12-0551 and 11-7865

DECISION

This Decision is issued pursuant to 20 U.S.C.§1400 et seq. (IDEA), 29 U.S.C. §794 (Section 504 of the Rehabilitation Act of 1973), M.G.L. c. 71B (chapter “766”), M.G.L. c. 30A (The Massachusetts Administrative Procedures Act) and the regulations promulgated in accordance with these statutes. In particular this Decision involves the interpretation and application of student residency regulations set out 603 CMR 28.10.

The parties are the Department of Elementary and Secondary Education (“DESE”), the Westborough Public Schools (“Westborough”) and the Middleborough Public Schools (“Middleborough”). Although the moving party has changed over time, the disputed issue involves the same facts and same parties. Middleborough originally filed a request for hearing to challenge the DESE assignment of shared fiscal responsibility for Student X with Westborough based on the father’s residence in Middleborough. Later, the DESE issued a new LEA assignment naming Westborough as solely responsible for Student X’s special education. Middleborough then withdrew its hearing request. Westborough immediately filed its own challenge to that subsequent DESE assignment. The core issue remains whether the Student “lives” with the father in Middleborough for the purposes of determining residency and assigning school district responsibility. The DESE determined that he did not. Westborough asserts that Student’s connection to his father’s residence in Middleborough is sufficient under 603 CMR 28.10 (2)(a) to trigger that regulation’s presumption of joint fiscal and programmatic responsibility between the father’s residence, Middleborough, and the mother’s residence, Westborough. The parties agreed to present their dispute for resolution on Motions for Summary Judgment. All Motions, Oppositions and supporting affidavits were received by September 9, 2011

A dispute under the IDEA or M.G.L. c. 71B may be resolved by a Motion for Summary Judgment when there is no genuine issue of material fact relating to all or part of a claim and application of relevant law clearly establishes the prevailing party. 801 CMR 1.01 (7)(b). See also: BSEA Rule VII and FRCP 56(c). Here all parties assert, and an independent review of the parties’ submissions confirms, that the predicate facts are not in dispute. Further, the parties agree that interpretation and application of an identified regulation will control the outcome here. Therefore resolution by way of Motions for Summary Judgment is appropriate.

ISSUE

Whether the June 28, 2011 determination by the DESE that Westborough is solely responsible for Student X’s special education program is correct?1

SUMMARY OF THE FACTS

The pertinent facts are set out in the parties’ written submissions:

1. The mother of Student X lives in Westborough, MA.

2. The father of Student X lives in Middleborough, MA.

3. Student X is 13 years old. He has received special education services through the Westborough Public Schools since at least 2009. At all times relevant to this dispute Student X attended a DESE approved specialized day school in Worcester, MA.2

4. The IEP developed by Westborough in April 2011 covers the time period April 2011 through April 2012. That IEP calls for, among other things, parent training. The mother is to receive 2 hours per month at home and 12 hours per month in school, with additional consultation time (more than 14 hours total per month). The father is to receive 2 hours per month at home and one hour per month in school (3 hours per month). The parent training component of the 2011-2012 IEP was accepted. All other portions of that IEP have been rejected. (W-6)

5. A parenting plan was developed by the parties and incorporated into the custody order issued by the Worcester Probate and Family Court on February 2, 2010. The Order provides:

The parties shall share legal custody of their son. Under the parenting plan, the mother shall be the primary parent and her residence will be considered the child’s home. The child shall be with his father every other weekend from Friday 6:00 p.m. to Sunday 6:00 p.m.
(M-1)

6. On February 8, 2011, the mother confirmed that the Probate Court’s parenting plan was being implemented. She wrote:

This letter is to confirm that [Student] has a regular visitation schedule with his father….who resides in Middleborough, MA.

[Student] spends every other weekend (Friday night-Sunday evening) at the resident of [Father]. During school vacations [Student] spends Sunday through Wednesday at his father’s house. In addition, if there is no school outside of holidays or vacation, such as snow days or professional days, [Student] spends overnights at his father house on Mondays, Tuesdays or Wednesdays.
(W-7)

7. On February 16, 2011 the DESE issued an “Assignment of School District Responsibility” (“LEA assignment”) finding that the Student lived with his mother, his physical custodian, in Westborough, and had visitation with his father in Middleborough on weekends and school vacations. As a result the DESE assigned Westborough programmatic and fiscal responsibility as of July 1, 2010.
(W-1)

8. On March 25, 2011 the DESE revised its LEA assignment stating:

We have received information…..that the Student not only resides with his father……on weekends and school vacations but he also resides with his father on school nights as well.

The DESE assigned shared programmatic and fiscal responsibility to Westborough and Middleborough.3 It did not clarify a start date. (W-2)

9. The DESE confirmed its joint LEA assignment to Westborough and Middleborough on April 28, 2011. Middleborough appealed the DESE assignment to the BSEA on May 9, 2011.
(W-3)

10. On June 27, 2011 the DESE wrote to the attorney for Middleborough:

When this office made an amended LEA determination on April 28, 2011 it was based upon the fact that the Student resided with both his mother in Westborough and his father in Middleboro. The 2/28/11 documentation submitted from [Mother] was misinterpreted by this office; it was believed that the Student resided with his father on school nights. When the Student stays with his father during the week it is only when there is a snow day or a professional day at school.

We are changing our assignment because the Student resides solely with his mother in Westborough and only has visitation with his father in Middleboro; therefore, Westboro4 has sole responsibility for this Student. We apologize for any confusion. (M-1)

11. On June 28, 2011 the DESE issued a “Corrected Assignment of School District Responsibility” noting that it has “misinterpreted” the documentation submitted by the mother on February 28, 2011. (See ¶6) The corrected notice assigns sole fiscal and programmatic responsibility for the Student’s special education program to Westborough. In support of that assigned the DESE wrote:

Based on the review of the documentation, the Department has determined that the Student resides solely with his mother in Westborough and has visitation with his father in Middleborough.
(W-4)

12. Westborough filed a challenge at the BSEA to that LEA assignment on July 14, 2011.
(Administrative Record)

LEGAL FRAMEWORK

Responsibility for developing, delivering and funding education programs for all Massachusetts students is based on residence. A school district is responsible for providing the special education program of any child with a disability who “resides” within its jurisdiction. M.G.L. c71B §3. The Supreme Judicial Court has noted that though a child’s residence is “generally the same as the domicile of the parent who has physical custody of the child” other factors may be important in determining the “actual residence” of any student. Walker Home for Children v. Franklin , 416 Mass. 291 295 (1993). The court instructed that “Home is the place where a person dwells and which is the center of his domestic, social and civil life.” Walker , Id . See also: City of Salem v. BSEA , 444 Mass. 476 (2005).

As authorized by the M.G.L. c71B §3 the DESE developed regulations to address concerns about determining residence for students with disabilities. 603 CMR 28.10. The provision applicable to this situation is 28.10 (2)(a)(2) which provides in pertinent part:
(a) When students live with their parent(s) or legal guardian

When 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.

In interpreting this regulatory section, in conjunction with the statute and the Court’s directives on determining residence, the BSEA has taken a flexible, highly individualized approach. The BSEA starts with the DESE assignment itself. Under 603 CMR 28.10 (9) the BSEA is charged with assuring that the DESE correctly applies the law on residency to the facts presented to it. The DESE’s interpretation and application of its own regulations is entitled to deference absent a showing of mistake of pertinent fact or law. Mass. Eye and Ear Infirmary v. Commissioner of Revenue , 46 Mass. App. Ct. 564 (1999). The BSEA has previously ruled that the DESE could take into account both the amount of time and the timing of a student’s stays in each parent’s home when determining student residence under M.G.L. c71B §3. In Re : Hamilton-Wenham , 13 MSER 358 (2007); In Re : Fall River , 11 MSER 193 (2005)

FINDINGS AND CONCLUSIONS :

After careful consideration of the parties’ arguments I find that the June 28, 2011 LEA assignment correctly applied the pertinent regulations and should be upheld. In reaching this conclusion I rely primarily on the following factors:

First, the Worcester Probate Court directed in the plainest possible language that “the mother shall be considered the primary parent and her residence will be considered the child’s home ”. The Court’s Order has not been modified and the parents and child are abiding by its terms. A court-ordered custody arrangement is not an absolute determinant of a child’s “actual residence”. Where, however, as here, there is no showing of living arrangements incompatible with a custody order, the Order carries significant weight and is properly considered by the DESE in evaluating a student’s residence for the purposes of M.G.L. c.71B §3.

Second, the center of a student’s “civil” life is school. The center of a student’s “domestic” life is where the bulk of the student’s non-school time is spent. Here the Student spends 12 of 14 days with his mother; more than 85% of his time is in residence in Westborough. More telling, the Student spends every school night in Westborough. He leaves for school each morning from his mother’s home in Westborough. Thus 100% of his school-related preparation and transportation occurs in Westborough. While mere calculation of hours spent with each parent is not determinative of “actual” student residence, where those hours clearly demonstrate an intertwined domestic and civil life centered in one place, residence is established. Here the Student’s “center” is Westborough. The fact that the Student stays with his father on alternate weekends does not make him a resident of Middleborough. Westborough argues that by discounting the time the Student spends with his father in Middleborough because it occurs on weekends the DESE improperly imported critical language into the applicable statute. I disagree. The DESE’s interpretation of the statutory language to permit less weight to be accorded to student location during non-school time is reasonable, consistent with judicial instructions, and effects the intent of the statute: all hallmarks of appropriate implementing regulations.

Finally, Westborough contends that the presence of a parent training component in the Student’s IEP which requires the delivery of in-home services to the father in Middleborough demonstrates that the Student is a resident, at least part of the time, of Middleborough. Overlooking for a moment the fact that the IEP was solely developed by Westborough, the mere existence of an out-of-school training component in an IEP does not drive determination of student residence. If it did the DESE might be weighing residence challenges involving day care providers, personal care attendants, and interested relatives throughout the Commonwealth.

ORDER

The DESE’s determination that Student X “lives” with his mother in Westborough and does not “live” with his father in Middleborough is supported by the clear preponderance of the evidence. The DESE correctly applied 603 CMR 28.10(2)(a)(2) when it found that under these facts Westborough is the residence of both the Student and the Parent with whom he lives.

The June 28, 2011 LEA assignment of sole programmatic and fiscal responsibility for Student X’s special education program to Westborough is confirmed.

By the Hearing Officer

_______________________

Dated: September 27, 2011


1

A subsequent LEA assignment is the subject of another BSEA proceeding.


2

That placement is the subject of yet another, different, BSEA proceeding.


3

“Middleborough” and “Middleboro” are used apparently interchangeably in DESE documents.


4

The DESE also uses “Westborough” and “Westboro” interchangeably.


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