Whitman Hanson Regional School District – BSEA # 12-3366



<br /> Whitman-Hanson Regional School District – BSEA # 12-3366<br />

COMMONWEALTH OF MASSACHUSETTS

Division of Administrative Law Appeals

Bureau of Special Education Appeals

In Re: Whitman-Hanson School District

BSEA # 12-3366

RULING RE JOINDER OF MASSACHUSETTS DEPARTMENT OF MENTAL HEALTH

Introduction

On January 17, 2012, Whitman-Hanson School District (Whitman-Hanson) filed with the Bureau of Special Education Appeals (BSEA) a motion to join the Massachusetts Department of Mental Health (DMH). On January 19, 2012, DMH filed an opposition; on January 24, 2012, Parents filed a response indicating that they do not object to the motion to join; and on January 26, 2012, a telephonic hearing was held on the motion.

Facts

The following facts are taken from the Parents’ hearing request, are not disputed and are assumed to be true for purposes of this Ruling only.

Student is a fifteen-year-old young woman with significant behavioral, emotional and learning issues. She has been diagnosed with Bipolar Disorder, Post Traumatic Stress Disorder, Attention Deficit Hyperactivity Disorder, traumatic brain injury, and a language-based learning disability.

After spending five months in various in-patient psychiatric programs for suicidal ideation, self-harm, mood lability, hypersexual behaviors, running away, and aggression towards peers and adults, Student was admitted to Cohannet Academy, which is a locked Intensive Residential Treatment Center located at Taunton State Hospital. Taunton State Hospital is a public psychiatric hospital operated by DMH. Currently, Student remains at Cohannet and attends classes at Salamon School, which is also located on the Taunton State Hospital grounds.

Since July 2011, Student has made sufficient progress to step down to a less restrictive, unlocked setting. Student’s current teachers and providers at Salamon and Cohannet recommend placement in a year-round, twenty-four hour residential school.

Positions of the Parties

Through their hearing request, Parents take the position that, under state and federal special education laws, Student requires placement in a year-round, twenty-four hour residential school. Parents do not oppose joinder but take the position that it is Whitman-Hanson that bears responsibility for the residential educational placement for Student because Student requires this placement for educational reasons.

Whitman-Hanson takes the position that DMH should be joined. Whitman-Hanson argues that Student can be appropriately educated within a day therapeutic program and that any needed residential services are for non-educational reasons and therefore may be the responsibility of DMH.

DMH opposes joinder. DMH argues that joinder is premature, that Whitman-Hanson’s responsibility to provide FAPE should first be determined by the BSEA, that DMH does not provide educational services, and that it is likely that any need for a residential placement will be for educational reasons and therefore the sole responsibility of Whitman-Hanson.

Legal Framework

The issue before me is whether DMH should be joined as a necessary party. Pursuant to BSEA Hearing Rule 1J, joinder may be ordered upon a finding that (1) complete relief cannot be granted among the existing parties, or (2) the proposed party to be joined has an interest in this matter and is so situated that the dispute cannot be disposed of in its absence. Pursuant to Rule 1J, factors to be considered in determining whether to join a party are (1) the risk of prejudice to the present parties in the absence of the proposed party; (2) the range of alternatives for fashioning relief; (3) the inadequacy of a judgment entered in the proposed party’s absence; and (4) the existence of an alternative forum to resolve the issues.

I further note that statutory language regarding the jurisdiction of a BSEA Hearing Officer over state agencies (including DMH) provides, in part, as follows:

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 program and related services to be provided by the school committee.1

The phrase “in addition to” within this statutory language has been interpreted by BSEA Hearing Officers to mean that if a student’s needs can be met through the special education and related services which are the responsibility of the school district, complete relief can be granted without the need for the human service agency to become a party and joinder is not warranted, at least for the purpose of requiring the agency to provide services. This maintains the school district as the entity with sole responsibility for all those services to which the student is entitled pursuant to state and federal special education law.

However, if additional services from a human services agency (over and above those services that are the responsibility of the school district) may be necessary to ensure that the student will be able to access or benefit from the school district’s special education program and services, then joinder of the state agency may be appropriate, so that the BSEA may then consider what, if any, additional services should be ordered.2

Discussion

Student remains at Cohannet Academy, which is a locked Intensive Residential Treatment Center located at Taunton State Hospital, but this program is no longer appropriate for Student. Parents take the position, which is supported by DMH, that Student cannot return home at this time, that she cannot be maintained in a day educational program alone, and that she must be placed residentially.

Student cannot be discharged through a residential placement because Whitman-Hanson and DMH disagree as to whether Student requires residential services for educational reasons and therefore they disagree as to who should fund any required residential placement, with the result that Student remains at a locked, DMH-funded residential treatment program that is no longer necessary or appropriate for her.

At this juncture, it is not possible to determine the likelihood that Whitman-Hanson is responsible to provide a residential educational placement. Similarly, it is not possible to determine the likelihood that DMH may be required to provide any additional services, including the possibility of non-educational residential services.3

However, it is clear that Student has required intensive services from DMH and may require continuing DMH services. Joinder of DMH will most likely avoid the possibility that I would determine Whitman-Hanson’s responsibility to provide what is required under special education laws but that this determination alone would not result in sufficient services to allow Student to access or benefit from Whitman-Hanson’s special education services. Joinder of DMH will ensure that any DMH services needed for this purpose can be considered and ordered at the same time.

Accordingly, I am persuaded that Whitman-Hanson’s responsibility and DMH’s responsibility, if any, should be addressed most efficiently through a single hearing (rather than through possibly separate evidentiary hearings) so that the entire dispute can be resolved as soon as possible. Also, DMH’s presence as a party will likely provide the Hearing Officer with valuable assistance towards the resolution of all aspects of this dispute and will not unduly delay the resolution of this matter.

For these reasons, joinder will be allowed.

Order

Whitman-Hanson’s motion to join the Massachusetts Department of Mental Health is ALLOWED .

By the Hearing Officer,

_________________

William Crane

Date: February 1, 2012


1

MGL c. 71B, s. 3. See also 603 CMR 28.08(3) (regulatory language similar to above-quoted statutory language).


2

See, e.g., In Re: Fall River Public Schools , BSEA # 09-6962, 15 MSER 152 (SEA MA 2009); In Re: Lowell Public Schools , BSEA # 07-2412, 13 MSER 40 (SEA MA 2007); In Re: Gloucester Public Schools , BSEA # 04-3543, 10 MSER 389 (SEA MA 2004); In Re: Whitman-Hanson Public Schools , BSEA # 02-4839, 8 MSER 326 (SEA MA 2002); In Re: Ipswich Public Schools , BSEA # 02-4324, 8 MSER 185 (SEA MA 2002) and other rulings cited therein.


3

It is unusual for a BSEA Hearing Officer to order a state agency (such as DMH) to provide residential services, but on two occasions I have done so. See In Re: Lowell Public Schools & Mass. Dept. of Children and Families, BSEA # 12-1912 (2011) (ruling ordering DCF to provide residential services under stay put principles); In Re: Medford Public Schools , BSEA # 01-3941, 7 MSER 75 (2001) (decision ordering DMR to provide residential services).


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