Worcester Public Schools – BSEA # 09-3109



<br /> Worcester Public Schools – BSEA # 09-3109<br />

COMMONWEALTH OF MASSACHUSETTS

BUREAU OF SPECIAL EDUCATION APPEALS

In Re: Worcester Public Schools BSEA # 09-3109

RULING ON WORCESTER PUBLIC SCHOOLS’ MOTION TO JOIN
MASSACHUSETTS DEPARTMENT OF CHILDREN AND FAMILIES

Introduction

On November 14, 2008, Parent filed with the Bureau of Special Education Appeals (BSEA) a Hearing Request alleging that Worcester Public Schools (Worcester) has failed to provide Student with a free appropriate public education.

On December 4, 2008, Worcester filed with the BSEA a Motion to Join the Department of Children and Families (DCF) ( Joinder Motion ).

On December 9, 2008, Parent filed an opposition to the Joinder Motion . On the same date, a telephonic hearing was held on the Joinder Motion . During the motion hearing, DCF took the position that joinder should not be allowed.

The instant Ruling addresses Worcester’s Joinder Motion .

With respect to the underlying Hearing Request , Parent seeks an order requiring Worcester to provide Student with a residential educational placement. Parent takes the position that such a placement is necessary to assist Student in controlling his behavior and managing his emotions in situations that he experiences as stressful. (A hearing on the underlying Hearing Request is scheduled for December 18 and 19, 2008.)1

Summary of the Facts

Student is a seven-year-old 2 nd grader who has a long history of receiving special education services from the Worcester Public Schools. Student lives at home with his mother in Worcester, MA. Student is a client of DCF, receiving DCF services on a voluntary basis.

Student has been diagnosed with a mood disorder not otherwise specified, early onset bipolar disorder, and learning disability not otherwise specified. In August 2008, the parties agreed that Student would be placed in a day school program at the Franklin Perkins School, a private school in Lancaster, MA. Student began the academic year at this school.

However, on September 27, 2008, Student was hospitalized at Cambridge Hospital. He was later discharged to the Wetzel Center Community Based Acute Treatment Unit, as a step-down therapeutic program, where Student resided until December 8, 2008 when he was discharged to home.

Legal framework

The issue before me is whether DCF 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. Factors that are 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.

Statutory language regarding the jurisdiction of a BSEA Hearing Officer over state agencies 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.2

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 such as DCF (over and above those special education and related 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.3 Under these circumstances, the BSEA has ordered a state agency to provide such additional services.4

Discussion

Worcester takes the position that with the addition of services from DCF (including intensive family support services through the Youth Village Program), Student may be appropriately educated within a day school placement, while continuing to live at home. Worcester believes that DCF has a responsibility to provide these services in order to address Student’s substantial non-educational needs and allow Student to access his special education and related services in the least restrictive environment. Worcester also takes the position that if a residential placement is needed, it would be DCF, rather than Worcester, that would be responsible for the residential component.

Worcester filed its Joinder Motion for the purpose of requiring DCF to provide home-based services to Student and Parents and, alternatively, to obtain a BSEA order that DCF should pay for the residential component of any residential placement that may be determined to be necessary. DCF and Parent take the position that DCF need not be a party in order for the BSEA to resolve all of the issues in the Hearing Request .

I turn to the principal purpose of Worcester’s seeking joinder, which is to ensure that DCF provides Student and his mother with appropriate home-based services through the Youth Village Program. Joinder is not warranted for these purposes if DCF will be providing the desired services in accordance with its own regulations without the need for a BSEA order.

At the joinder hearing, the DCF attorney reported that Student and his Parents qualify to receive these home-based services from DCF, and that these services are now available to be provided to Student and his Parents from DCF. Worcester has no information to the contrary. For these reasons, I find that, at least at this juncture, DCF is likely to provide the desired services voluntarily, with the result that there is insufficient reason to require joinder of DCF for this purpose.

The secondary purpose of Worcester’s seeking joinder is to have DCF as a party in the event that the BSEA Hearing Officer determines residential services to be necessary. Worcester would seek to establish that it is DCF, not Worcester, that is responsible to pay for the residential component of such services.

Parent (with support from DCF) takes the position that (1) in the event that residential services are required, it would most likely be Worcester, rather than DCF, that would bear this responsibility; (2) the hearing in this matter would be unnecessarily complicated and delayed by including DCF as a party; and (3) there is urgency in the quick resolution of this matter by the BSEA.

Regardless of DCF’s involvement as a party, the first inquiry by a BSEA Hearing Officer would be consideration of the extent of Worcester’s responsibility pursuant to state and federal special education law. Only after this determination is made would it be appropriate to determine what, if any, additional services should be provided by DCF.

DCF’s responsibilities can be determined, if need be, in a separate and subsequent hearing after determination of Worcester’s responsibilities. The question of whether to determine these issues in a single hearing or in two separate hearings is principally a judgment regarding efficient use of resources as well as the importance of resolving the responsibilities of the school district without taking additional time, in the first instance, to also address DCF’s responsibilities. When answering this question in the instant appeal, I take into consideration the time-sensitive nature of the appeal, the position of Parent, and any prejudice to the school district.

Student has very recently returned home. Parent has alleged within her Hearing Request that Student has severe emotional and behavioral deficits that cannot be addressed satisfactorily at home, even with increased home-based services, and that a residential educational placement is required in order for Student to receive FAPE. Parent has noted Student’s multiple psychiatric hospitalizations that have interrupted his educational services. Parent takes the position that this pattern may continue until appropriate residential educational services are provided. Worcester believes that the DCF home-based services should be implemented for a period of time to determine their effectiveness prior to a BSEA determination of Worcester’s responsibilities regarding residential placement. Under these circumstances, I find that this matter is time-sensitive, and that Parent should have the opportunity to have the BSEA resolve this dispute as quickly as possible.

Parent has correctly noted that Worcester’s responsibilities can be addressed more quickly through a hearing on this issue alone, rather than a hearing that would likely be complicated and delayed somewhat by an additional party (DCF), as well as the additional BSEA determination of DCF’s responsibilities. Parent understands that this may possibly require a separate, second hearing regarding DCF’s responsibilities. Parent’s view on this aspect of the joinder issue is entitled to weight since Student has the most at stake regarding the timing of any determination of DCF’s responsibilities regarding residential services.

I am not persuaded that Worcester will be prejudiced by moving ahead to a hearing without DCF as a party and requiring Worcester, if necessary, to file a subsequent action against DCF to determine DCF’s responsibilities. Worcester will not be precluded from seeking, at hearing, to put in evidence the nature and scope of the DCF home-based services and then taking the position that these services make it unnecessary for the BSEA to order residential placement at this time. Also, I note that DCF’s attorney has indicated that he will work with Worcester’s attorney to address promptly any subpoenas for information or witnesses relative to Worcester’s position that DCF’s home-based services make unnecessary a residential placement. I find that it is not necessary to have DCF as a party in order for Worcester to be able to present this information at hearing.

For these reasons, I conclude that joinder of DCF is not warranted under BSEA Hearing Rule 1J.

Order

Worcester’s Joinder Motion is DENIED WITHOUT PREJUDICE .

This matter will proceed, as scheduled, for hearing as scheduled at 9:30 AM on December 18 and 19, 2008 . By agreement of the parties during a conference call on December 9, 2008, documents and witness lists shall be provided to the Hearing Officer and opposing party no later than December 15, 2008 .5

By the Hearing Officer,

_________________

William Crane

Date: December 10, 2008


1

Parent is represented by attorney Tim Sindelar. Worcester is represented by attorney Paige Tobin. DCF is represented by attorney Brian Pariser.


2

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


3

E.g., In Re: Gloucester Public Schools , BSEA # 04-3543, 10 MSER 389 (SEA MA 2004); In Re: Lowell 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.


4

In Re: Medford , BSEA # 01-3941, 7 MSER 75 (2001).


5

During the motion hearing, DCF made clear that it does not desire to participate in the resolution of Worcester’s responsibilities under state and federal special education law. DCF agreed that during a potential second hearing regarding its responsibilities, DCF would have no opportunity to challenge or otherwise seek to change in any way the BSEA’s prior determination of Worcester’s special education responsibilities, even though this determination may influence what additional services, if any, must be provided by DCF.


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