Worcester Public Schools vs. Douglas Public Schools – BSEA # 06-1302

Worcester Public Schools vs. Douglad Public Schools – BSEA # 06-1302

COMMONWEALTH OF MASSACHUSETTS

Bureau of Special Education Appeals

In Re: Worcester Public Schools v. Douglas Public Schools

BSEA #06-1302

Decision

This decision is issued under M.G.L. c. 71B and 30A, 20 U.S.C. § 1401 et. seq ., 29 U. S. C. § 794 and the regulations promulgated thereunder. By agreement the parties submitted this matter to the Hearing Officer for decision on documents alone pursuant to BSEA Rule XII and 801 CMR 1.01(10)(b). After careful consideration of the undisputed facts set out by the parties, and the thoughtful arguments of counsel I make the following

Findings of Fact

1. The Student is eligible to receive a free, appropriate public education pursuant to 20 U.S. C. 1401 et . seq . and M.G.L. c. 71B. At all times relevant to this decision the Student lived in a group home in Worcester operated by the Department of Social Services, and the Student’s mother resided in Douglas, MA.

2. The Student entered the Worcester Public Schools on March 3, 2004 with a then current IEP from another school district. Worcester implemented the IEP. Worcester convened a Team meeting on May 11, 2004. The IEP developed as a result of that meeting was accepted by the Student’s mother on May 31, 2004. Douglas was not invited to participate in that Team meeting. (D-2).

3. On June 7, 2004, Worcester sent a written “Notification of Financial Responsibility for Student in Group Home” to Douglas along with a bill for the special education services rendered between March 3, 2004 and the close of the 2003-2004 school year (W-A).

4. On November 23, 2004, Douglas wrote back to Worcester disputing the June 2004 bill. Douglas requested an adjustment, claiming that special education services could not have started until after the Student’s mother accepted the IEP on May 31, 2004 (W-B).

5. Worcester replied to Douglas on December 2, 2004, explaining that it provided the special education services required on the IEP the Student entered with on March 3, 2004, and again requested payment (W-C).

6. On February 21, 2005, Worcester issued a bill to Douglas for the cost of providing the Student’s 2004-2005 special education program (W-D).

7. On April 14, 2005, the Department of Education issued an “Assignment of School District Responsibility” designating Douglas as the LEA with financial responsibility for the Student’s special education program and Worcester as the LEA with programmatic responsibility for the Student’s program (W-E; D-1). The record does not show which school district requested clarification of responsibility. The DOE assignment was not appealed.

8. On May 2, 2005 Worcester issued a second bill to Douglas for the Student’s 2004-2005 special education program (W-F; D-3).

9. On June 13, 2005, Worcester wrote to Douglas for the 3 rd time requesting payment for the Student’s 2004-2005 special education program and enclosing a copy of the Student’s IEP and attendance record (W-G, D-4). On June 16, 2005 Douglas requested clarification of the Student’s special education status (D-5). Worcester replied on June 27, 2005, sending Douglas additional information and again requesting payment of the 2004-2005 program fee (D-6).

10. The Student left the Worcester Public School District on November 10, 2005.

11. To date Douglas has not paid any of the cost of special education services provided by Worcester to this Student.

Issue

Whether financial responsibility for the Student’s special education program based on parental residence in Douglas is contingent upon the participation of Douglas in a Team meeting convened by the programmatically responsible school district, Worcester?

Conclusions of Law

The short answer to the question set out above is: no. Financial responsibility for special education in Massachusetts is based on residence. School Committee of Stoneham v. Robert Antonucci , Superior Ct. CA. No. 92-5899 (April 26, 1996); See also: East Longmeadow Public Schools , 9 MSER 55 (2003). Here, the parental residence in Douglas, which is the basis of Douglas’ fiscal responsibility for this Student’s special education program, has remained constant and unassailable throughout the course of this dispute. The plain language of the Massachusetts special education regulations clearly places fiscal responsibility for the Student’s special education program with Douglas as the residence of the Parent, so long as the student lives in a group home funded by the Department of Social Services:

The school district where the parent(s) resides shall have financial responsibility and the school district where the Student resides shall have programmatic responsibility when a student is [living in] a group home…funded or supervised by a state agency…

603 CMR 28.10(4). Additional support for the designation of Douglas as the fiscally responsible LEA is found in the unambiguous, unappealed (and, one might argue unnecessary) assignment of fiscal responsibility to Douglas from the Department of Education dating from April 14, 2005. Therefore I find that Douglas is fiscally responsible for any special education charges incurred by Worcester on behalf of this Student beginning on March 3, 2004 and continuing until she left the Worcester Public Schools.

Douglas argues that it has no financial obligation to the Student until it participates in a Team meeting to develop an appropriate program for her. To support its contention that participation in the Team process is a precondition to financial responsibility Douglas points to the mandatory language in 603 CMR 28.10(4)(c) which provides:

In all cases where financial and programmatic responsibility are shared, the school district where the student resides shall invite the school district where the parent(s) or legal guardian resides to participate as a member of the student’s Team, provided that such participation shall not limit the student’s right to timely evaluation and placement in accordance with 603 CMR 28.00.

I disagree. This regulatory subsection must be read in the context of the entire regulatory treatment of residence contained in 603 CMR 28.10, and consistent with statutory selection of residence as the determinant of fiscal responsibility. The school district with programmatic responsibility has the sole authority to evaluate the student, to convene a Team, and to propose, develop, or select the appropriate services or program. The financially responsible school district may not offer an alternative IEP nor may it withhold financial resources if it disagrees with the plan developed by the programmatic school district (D-7). Read in context the language in 603 CMR 28.10(4)(c) requiring the participation of the fiscally responsible school district in Team decisions is an attempt to secure the most comprehensive student information possible, not to inject financial considerations into educational decision making. The kind of onerous financial sanction that Douglas suggests should attach to the programmatically responsible school district as a result of its failure to invite a fiscally responsible school district to a Team meeting would undermine the settled statutory and regulatory basis of allocation of responsibility based on residence alone. Other districts which have offered equitable arguments in opposition to their designation as financially responsible school districts, lack of notice for example, or “limited” guardianships, have not been successful. East Longmeadow , supra at 58; City of Salem v. BSEA , Essex Sup. Ct. Ca 02-0861-D, 11/3/03; Longmeadow Public Schools , 6 MSER 29 (1999). Furthermore here, the equities do not favor Douglas. Douglas was first notified of its fiscal responsibility for this Student on June 7, 2004. It did not reply until nearly 6 months later, and then only to dispute a bill. Douglas argued that as a Team participant it could have offered the Student a less restrictive (and presumably less costly) in-district program. I do not find Douglas’ argument genuine. At no time in the eighteen months the Student lived in Worcester did Douglas request a Team, describe alternative educational options, or indicate any interest in the Student’s educational progress. The correspondence from Douglas to Worcester in this record reveals only attempts to delay or avoid the fiscal responsibility it clearly shouldered pursuant to 603 CMR 28.10(4) and the DOE LEA assignment.

Order

Douglas is fiscally responsible for the special education program costs incurred by Worcester in connection with providing services to this Student from March 3, 2004, until the Student exited the Worcester Public Schools. The fact that Douglas did not participate in a Team meeting for this Student, while regrettable, is not a procedural bar to appropriate reimbursement to Worcester, the programmatically responsible school district. Douglas shall arrange for full payment of all outstanding charges to Worcester within 30 days of the date of this decision.

March 15, 2006 Lindsay Byrne, Hearing Officer

 

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