WORCESTER PUBLIC SCHOOLS – BSEA #03-0307



<br /> WORCESTER PUBLIC SCHOOLS – BSEA #03-0307<br />

COMMONWEALTH OF MASSACHUSETTS

SPECIAL EDUCATION APPEALS

BSEA #03-0307

RE: WORCESTER PUBLIC SCHOOLS

RULING ON MOTION TO JOIN DMH

I. INTRODUCTION AND PROCEDURAL HISTORY

This matter comes before the Bureau on the Motion of the Worcester Public Schools (Boston) to Join the Department of Mental Health (DMH) in this special education appeal. The motion was opposed by DMH. The Parents feel that Student requires a residential program for educational reasons but would want DMH joined if the evidence shows that Student does not require the Wediko program for educational reasons and that incomplete relief would result without their presence. DMH has agreed that Student meets their criteria for a DMH residential facility but that there are currently no openings. As such, Student has been put on a waiting list. DMH stipulates that Student can receive DMH residential services when an opening occurs; see Record. Worcester would like DMH joined and if the evidence supports it, to have DMH ordered to provide Student a residential placement even if he still remains on the waiting list or if it is in a facility not ordinarily funded by DMH. Parents do not oppose this request.

Worcester, DMH and Parents submitted briefs on this matter and had an opportunity to argue their positions; see Record.

After consideration of all the Parties motions, briefs and oral arguments, Worcester’s motion to join is dismissed without prejudice. DMH has stipulated that it will provide residential treatment consistent with an opening and his place on the waiting list. No one has asserted that DMH has acted in a manner inconsistent with its regulations. 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. Chapter 159, section 162 of the Acts of 2000, amending MGL c. 71B, s. 3 (hereafter, Section 162).

However, the jurisdiction of the Bureau of Special Education Appeals over state agencies, can only be exercised in accordance with the rules, regulations and policies of the respective agencies and consistent with 34 CFR 300.142(a). Id.

Neither Worcester nor Parents have shown any authority to allow a BSEA Hearing Officer to order a state agency to provide services that part from the standard procedure that DMH has established pursuant to their rules and regulations. Nor has either party shown that the plain language of the statute is unconstitutional, arbitrary or capricious or inconsistent with federal law. As such, the Hearing Officer finds that she has no authority to join DMH in this matter.

A hearing will remain scheduled for April 3-4, 2003. DMH is excused from further proceedings.1 . The issue for hearing is whether Student’s special education needs require a therapeutic educational setting to achieve a FAPE2 . Both Parties however retain the right to refile the motion for joinder if the evidence so warrants.

Any requests for postponement shall be made in writing. Should the Parties reach a settlement agreement prior to the prehearing date the moving party (Parent) must file a written withdrawal of the proceeding.

By the Hearing Officer,

_______________________________

Joan D. Beron

Dated: March 6, 2003


1

Either party may call DMH as a witness. Worcester also retains the right to file an action for reimbursement from DMH if the evidence at hearing so warrants. If this occurs DMH’s right to file an opposition or other motions are preserved.


2

Worcester admits, consistent with case law and statute, that it must provide the residential services if Student requires such for educational reasons.


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