COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
In re: Haverhill Public Schools
BSEA #02-0567
RULING ON HAVERHILL PUBLIC SCHOOLS’ MOTION TO JOIN THE DEPARTMENT OF MENTAL RETARDATION AS A NECESSARY PARTY
This ruling is rendered pursuant to 20 USC 1400 et seq. (Individuals with Disabilities Education Act), 29 USC 794 (Section 504 of the Rehabilitation Act), MGL chs. 30A (state administrative procedure act) and 71B (state special education law), and the regulations promulgated under said statutes.
The parent of the above named student (hereafter, Mother) filed a BSEA appeal of Haverhill Public Schools’ (hereafter, Haverhill) IEP calling for her daughter’s education at the residential Highashi School (hereafter, Highashi). Mother asserts that Student requires a 365-day educational program or activities and a summer camp experience, covering Highashi’s eight weeks of vacation yearly.
Haverhill asserts that Mother’s request for extending the school year is for non-educational reasons, that Mother allegedly has difficulty supervising Student during vacation periods, and given that Student is a client of the Department of Mental Retardation (hereafter, DMR), DMR should provide for the family’s needs during Highashi’s vacation period. Thus, Haverhill filed its MOTION TO JOIN DMR, asserting that it is a necessary party under the provision of M.G.L. c. 71B, §3 as amended by Chapter 159, §162 of the Acts of 2000 and 603 C.M.R. 28.08(3).
DMR opposes such Motion to Join, asserting that any need for extending Student’s services beyond Highashi’s current school year, is not its responsibility, but is rather the responsibility of other agencies: if the need is educational, then Haverhill is responsible; and if the need is for non-educational reasons, either the Department of Education (hereafter, DOE)1 or the Department of Social Services (hereafter, DSS)2 is responsible. DMR acknowledges that Student was found eligible for DMR’s family support services pursuant to 115 CMR 6.073 , but those are very limited. Because Student is under age 18, she is not generally eligible for DMR services pursuant to 115 CMR 6.034 . Further DMR’s services are provided based on the availability of resources and priority of need. Student is prioritized within the Fourth Priority, for she is receiving 24-hour educational residential services, and DMR presumes that the LEA is therefore responsible for providing services for 365 days, if it is needed. (See 115 CMR 6.07(d)).
STATEMENT OF FACTS
Student is a fourteen year old girl diagnosed with autism. Concerns regarding severe behavioral problems including head banging, tantruming, and aggression towards others, led to her need for a residential educational program. Since 1993 she has attended Highashi’s residential program pursuant to her IEPs, first from the Lowell Public Schools when Mother resided in the city of Lowell, and since 2000, from Haverhill when Mother moved to the city of Haverhill. This program schedules a two-week winter vacation, a two-week spring vacation, and a four-week summer vacation, at which time students are with their families.
Student also is a client of DMR; it has provided the family with three days of respite in August of 2000. No further DMR supports have been requested, and in fact, this Motion to Join was DMR’s first notice regarding the need for further family support services.
RULING
Joinder of DMR is called for where complete relief cannot be granted by Haverhill, or DMR has an interest relating to the case and is so situated that the case cannot be disposed of in its absence.5 Further, it is called for when the Hearing Officer may deem that DMR should provide services in addition to the program and related services to be provided by Haverhill, in accordance with M.G.L. c 71B §3, as amended by Chapter 159, §162 of the Acts of 2000 and 603 C.M.R. 28.08(3).
Whether DMR should be joined as a necessary party in this case, requires an understanding of the parameters of a possible “complete relief”. This requires an understanding of the BSEA’s authority to grant that relief, as addressed in M.G.L. c. 71B, s. 3 amended by Chapter 159, section 162 of the Acts of 2000 (hereafter, Section 162). The pertinent section states:
The Hearing Officer shall order such educational placement and services as he deems appropriate and consistent with this chapter to assure the child’s maximum possible development in the least restrictive environment; … A 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.
MGL c 71B §3 as amended by Section 162 (Section 162 is italicized)
As pointed out by Hearing Officer Crane in the BSEA decision In re: Medford Public Schools , 7 MSER 74, this amended statute is not entirely clear on its face, and there is no legislative history or interpretive judicial decision.6 On the one hand, the amendment is in the context of the special education statute’s mandate that the Bureau of Special Education Appeals (hereafter, BSEA) order the placement and services needed for a free and appropriate public education (hereafter, FAPE). On the other hand, the amendment authorizes the Hearing Officer to order human service agencies to provide services “in addition to the program and services provided by the school committee.”
The Massachusetts Department of Education (hereafter, DOE) appears to have addressed the limits of the Hearing Officer’s authority granted by Section 162, through its regulation 603 CMR 28.08(3), (hereafter, Section 28.08(3)). It states in pertinent parts:
Bureau of Special Education Appeals: Jurisdiction . In order to provide for the resolution of differences of opinion among school districts, private schools, parents, and state agencies, the Bureau of Special Education Appeals, … , shall conduct mediations and hearings to resolve such disputes. The jurisdiction of the Bureau of Special Education Appeals over state agencies, however, shall be exercised consistent with 34 CFR 300.142(a). The 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 IEP services to be provided by the school district. (italics added)
The federal regulation Section 300.142, referred to in this state regulation states in pertinent part:
Methods of ensuring services.
(a) Establishing responsibility for services. The Chief Executive Officer or designee of that officer shall ensure that an interagency agreement or other mechanism for interagency coordination is in effect between each noneducational public agency described in paragraph (b) of this section and the SEA, in order to ensure that all services described in paragraph (b)(1) of this section that are needed to ensure FAPE are provided, …
(b) Obligation of noneducational public agencies.
(1) General. (i) If any public agency other than an educational agency is otherwise obligated under Federal or State law, or assigned responsibility under State policy or pursuant to paragraph (a) of this section, to provide or pay for any services that are also considered special education or related services (such as, but not limited to, services described in §300.5 relating to assistive technology devices, §300.6 relating to assistive technology services, §300.24 relating to related services, §300.28 relating to supplementary aids and services, and §300.29 relating to transition services) that are necessary for ensuring FAPE to children with disabilities within the State, the public agency shall fulfill that obligation or responsibility, either directly or through contract or other arrangement.
DOE’s regulation linking these two federal and state sections, serves its purpose in giving context to Section 162. It does, however, raise further questions in understanding the Bureau’s authority to join human service agencies. Of main concern is that Section 300.142(a) calls for a mechanism to ensure FAPE; nothing more.7 Yet, is Section 162 authorizing BSEA orders for human service agencies’ services “in addition to those provided by the school committee” that are beyond FAPE?
Three possible interpretations come to mind: two that are legally unsupportable under the current legislation, and one that would be useful in only exceptional situations.
· The first interpretation is that Section 162 authorizes the Bureau to order human service agencies to provide services having nothing to do with FAPE, but that the handicapped child/family needs. Arguably there could be benefit to such arrangement. This law, however, does not support such interpretation, for the amendment is in the context of the special education statute, and further, is in the context of a description of the Hearing Officer’s mandate to order educational programs. Also, in deference to DOE’s linking this section to the federal section 300.142 that explicitly applies to FAPE services, this first interpretation is not legally supportable.
· The second interpretation is that Section 162 authorizes the Bureau to shift the FAPE responsibilities from a school committee to a human service agency, and order the school committee and the agency to split the service delivery for FAPE. Although unclear, such a due process mechanism may be an option contemplated in the federal law Section 300.142(a), however, it is not likely the intent of this state’s legislature or DOE.8 Neither the legislature nor DOE has provided guidance or criteria on deciding how and when to shift the IDEA and Chapter 766 mandates from school committees to human service agencies. Without such explicit authorization, such interpretation of the amendment is shaky at best.
· The third interpretation is that Section 162 authorizes the Bureau to order services that are in addition to the FAPE services, but are somehow required in order that the FAPE can be implemented. This interpretation is legally supportable, in that the Bureau’s authority would still be limited to ensuring FAPE, and the school committee would still retain its IDEA responsibilities. However, if there is occasion where a human service agency’s services are in fact necessary to ensure implementation of FAPE, it would be rare and case specific. That is, the IDEA requires school districts to provide the related services needed to ensure that a child receive FAPE, and the definition of related services includes a list of services that is not exhaustive: school committees are responsible for providing the “developmental, corrective, and other supportive services as are required to assist a child with a disability to benefit from special education services. (See 34 CFR §300.24) As such, the services required of human service agencies would not be “related services” mandated by the IDEA, but would be other services needed to ensure that a child receives FAPE.
Though providing for a rather limited authority, this third interpretation of Section 162 is the most probable and the most defensible. Thus, DMR would be appropriately joined in this case, only if after Haverhill provides the IDEA mandated extended year program (however long that may be), yet something else may be needed from DMR to ensure that Student is able to benefit from her legally entitled Highashi program and services. Haverhill has not made any such claim. Accordingly, Haverill’s MOTION TO JOIN DMR is DENIED. Whether Student is entitled under special education law to receive more services than Highashi’s extended year program may or may not be true. If it is true, the law has always been clear – Haverhill will be responsible for providing such. It may do so by contracting with Highashi staff, by contracting with other private schools, by using its own staff, or by placing her in another public school program, by providing in home educational services, etc.. If it is determined that Student is not entitled to an extended year program beyond Highashi’s program, respite services or other DMR services may be desired and appropriate, but such would not be ordered by the BSEA, since Haverhill has not taken the position that these services are necessary for Student to benefit from her legally entitled educational program and services. Having said this, it is always best if the agencies can work together to provide Student and her family the supports that they need. Further, the parties may seek a joint resolution in the interest of avoiding a BSEA hearing that would define what are or are not Student’s legally entitled services. To the extent that DMR’s participation in the pre-hearing scheduled for December 7, 2001, would help the parties jointly serve Student and her family, DMR is encouraged to attend.
By the Hearing Officer,
________________________________
Date: November 29, 2001
1
DMR asserts that the August 28, 1998 DOE/DMR Interagency Agreement dictates that DOE would be financially responsible for any joint service program. There is no Motion to Join DOE, and therefore it is not appropriate to rule on this issue. The Interagency Agreement, however, refers to cases where the parties are attempting to provide a less restrictive alternative to a residential program; neither Mother nor Haverhill is seeking such alternative placement, for Student is remaining a residential student at Highashi. Thus, that agreement would be inapplicable unless and until the parties indicate that they desire a less restrictive program.
2
DMR asserts that if out-of-home services are needed during vacation periods (beyond the one week of DMR respite services), DSS – not DMR – is the responsible agency. Again, as there is no Motion to Join DSS, it is not appropriate to rule on this.
3
Such eligibility is based on her developmental disability and her being under age 18.
4
Such eligibility is based on her developmental disability and her being at least age 18.
5
BSEA Hearing Rule 1F
6
In re: Medford Public Schools has been appealed to the Massachusetts Superior Court.
7
Note also that Section 300.142(a) applies to interagency coordination between the state education agency (DOE) and non-educational public agencies, not between local school districts and agencies as referenced in Sections 162 and 28.08(3).
8
Section 300.142(a) states that the Chief Executive Officer “shall ensure that a … mechanism for interagency coordination is in effect between each non-educational public agency described in paragraph (b) of this section [i.e., that is … assigned responsibility … pursuant to … the mechanism for interagency coordination], and the State Education Agency, in order to ensure that all services … that are needed to ensure FAPE are provided”.