COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
In Re: Attleboro Public Schools
BSEA # 02-4839
RULING ON MOTION TO JOIN DMR AND/OR DSS
On September 11, 2002 the Attleboro Public Schools (Attleboro) filed a Motion to Join the Department of Social Services and/or the Department of Mental Retardation as Necessary Parties . Written arguments regarding said Motion were filed by October 4, 2002 and a Motion Hearing was held on October 8, 2002.
FACTS
The relevant facts are not in dispute. Student, a six-year-old boy, is currently living at home and receiving special education services in a program within Attleboro’s public education system. He is diagnosed with autism. During the 2001-2002 school year, Student made gains regarding academics as well as expressive and receptive language, but gains were not made regarding his behavioral issues and there may have been regression in this area.
Student exhibits difficult behaviors at home and at school. At home, Student frequently displays dangerous and/or disruptive behavior without warning – for example, smearing feces on the wall, biting his older brother and, on one occasion, scratching his older brother and leaving a scar. Parents have substantial difficulty maintaining the safety of their home.
After evaluations and a Team meeting in March 2002, Attleboro proposed an out-of-district day placement, either at a private school or within a collaborative program. Parents believe that the particular placements proposed by Attleboro would not meet their son’s needs. They are seeking a residential placement.
The Department of Mental Retardation (DMR) has determined Student to be eligible for family support services and, as of February 2002, began providing Student and his family with respite services through its Intensive Flexible Family Supports program. DMR intends this program to continue only for 12 months. The Parties may also explore the possibility of DMR family support services through other avenues, such as an initiative between DMR and the Massachusetts Department of Education (DOE).
The Department of Social Services (DSS) became involved when Attleboro filed a report with DSS pursuant to MGL c. 119, s. 51A after Attleboro became concerned about the ability of Parents to manage their son’s behavior safely in the home in (or around) December 2001. After an investigation, DSS determined that there were no protective concerns (that is, no concerns that Student might be subject to abuse in the home). DSS then initiated voluntary supportive services, including respite, to the Parents.
Arguments
Attleboro notes that there is a dispute between Parents and the School District as to whether Student requires a day or residential placement, with the Parents seeking a residential placement. Attleboro takes the position that if Student requires a residential placement, the residential portion of the placement would be needed because of issues in the home rather than for educational reasons. Accordingly, Attleboro argues, that joinder of DMR and DSS is necessary because one or both of these state agencies may be responsible for the residential portion of the placement.
The Parents argue that their son’s behaviors are sufficiently difficult that he should receive a residential placement or, alternatively, assistance in the home through training of Parents, direct services and respite. They argue that since it may be determined that some or all of these services are needed for non-educational reasons, assistance from DMR may be necessary. Parents therefore support joinder of DMR.
However, Parents oppose joinder of DSS. They are concerned that services from DSS would require signing a voluntary placement agreement and, after a period of months, this would likely result in DSS proceeding to court and obtaining custody of their son. Parents do not believe that DSS involvement is warranted under these circumstances.
DMR argues that it is the responsibility of the school district (i.e., Attleboro) to provide Student with a placement that meets all of his educational needs or, alternatively, it is the responsibility of DSS to provide for the care and protection of Student. DMR takes the position that although Student has been found eligible for and is receiving DMR family support services, the purpose of these services is to support families to stay together in the family home, rather than to “fulfill another agency of the Commonwealth’s mandate or to subsidize said agency’s mandate.”1
DMR further argues that its enabling statutes and regulations do not create any obligation upon DMR to provide any residential or educational services for children; that continuation of any supportive services within the home is discretionary and subject to funding; and that Parents’ current services from DMR are only for a period of 12 months. Therefore, DMR argues that it may not be required by a BSEA Hearing Officer to provide any supportive or residential services, and joinder should be denied.
DSS argues that it should not be joined because its services are voluntary on the part of Parents since DSS does not have custody or protective concerns; Parents have stated that they will not enter into a voluntary placement agreement with DSS. DSS further argues that it maintains discretion as to when to provide services and, if services are provided, where Student should be placed. Therefore, DSS argues that it may not be required to provide any services by a BSEA Hearing Officer, and joinder should be denied.
DISCUSSION
The issue before me is whether DSS and/or DMR should be joined as necessary parties pursuant to BSEA Hearing Rule 1F.2 Statutory language regarding the jurisdiction of a BSEA Hearing Officer over state agencies (for example, DMR and DSS) includes the following:
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.3
The “in addition to” language within this statute means 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. 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.4
Additional services from a human services agency may be considered but only if such additional services 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.5
I now turn to the questions of whether services from DMR or DSS may be necessary in this particular case as “additional services” beyond what is the responsibility of Attleboro, and whether the services could be ordered by a BSEA Hearing Officer in accordance with rules, regulations and policies of the particular human services agency. If so, that agency would be a necessary party and should be joined.
There is no dispute that although at a relatively young age, Student exhibits extremely troublesome and potentially dangerous behaviors that are difficult, if not impossible, for Parents to manage safely without supportive services in the home or, alternatively, without a residential placement. Parents need significant, professional assistance with respect to their son’s behavioral issues.
Attleboro has argued (and may possibly be able to demonstrate at Hearing) that the behavioral difficulties which occur at home are not the responsibility of the School District because they are not educationally related. If I were to agree that it is not the responsibility of Attleboro to help Parents manage or otherwise address these behaviors at home, Parents have argued (and may possibly be able to demonstrate at a Hearing) that additional supportive services to Parents from a state agency and/or residential services from a state agency are necessary in order to allow Student and his Parents to access or benefit from the educational services which are the responsibility of Attleboro.
I now consider whether I would have the authority to order DMR to provide these additional services in accordance with DMR’s rules, regulations and policies. DMR regulations and comprehensive DMR guidelines describe the eligibility for, prioritization of and provision of family support services to children and their families. The regulations explain that the highest priority for these services is when the services are needed to avoid “serious or immediate threat of harm to the child or others and the requested supports are not otherwise available.”6
There is no dispute that Student and his Parents are eligible for the DMR family support services, and are appropriately receiving these services from DMR at this time. Parents will likely continue to require significant assistance within the home in order to maintain the safety of that environment. If the support services are not educationally-related (and therefore not the responsibility of Attleboro), it is apparent that Student and her Parents will fall within DMR’s highest priority for the receipt of family support services.
DMR has indicated that within a few months, these services may be reduced and then terminated because it is DMR’s general practice not to continue its Intensive Flexible Family Supports program (pursuant to which Parents are currently receiving respite) to a family for more than 12 months. However, I can find nothing within DMR’s regulations or policy that would preclude continuation of family support services, either through the Flexible Family Supports program or through another DMR initiative.7
For these reasons, I find that Parents may need family support services from DMR in addition to any special education and related services that are the responsibility of the school district and that, in an appropriate case, I would have the authority to order these services consistent with the DMR rules, regulations and policies.8
I therefore conclude that joinder of DMR is required in order to ensure that complete relief can be granted. I note, however, that any order regarding provision by DMR of home support services will require appropriate factual and legal findings that can be made only after an evidentiary Hearing on the merits.
Parents and Attleboro also seek joinder so that DMR may be ordered to pay for the residential portion of Student’s placement in the event that I were to conclude that such placement is necessary and not the responsibility of Attleboro.
DMR’s principal argument regarding this aspect of the dispute appears to be that its regulations do not contemplate residential services for persons under the age of 18 years.9 DMR further points out that Student has been found eligible only for family support services.
However, language within DMR’s enabling statutes makes clear that DMR has the authority and responsibility to develop and maintain comprehensive services for children, including residential care and educational services.10 DMR statutory language further provides that “Those eligible for participation in any one service must be eligible for and have access to other services made available by the department [of mental retardation].”11
Since I have already found sufficient grounds to order joinder of DMR on the basis of Student’s possible need for DMR family support services, I need not resolve this aspect of the dispute at this time and decline to do so. At a Hearing on the merits, the parties will have the opportunity to present evidence and make further argument as to the need for and appropriateness of my ordering residential services, as well as which public entity should bear responsibility for them. Residential services would only be considered appropriate for Student if no less restrictive services would meet Student’s needs.
I now turn to the question of whether DSS should be joined. At the Motion Hearing and in its written argument, DSS made clear that it has no protective concerns with respect to Parents. Student is not within the care or custody of DSS. DSS takes the position that under these circumstances any services from DSS must be voluntary. DSS further explained the likelihood that within the period of a 12-month IEP, DSS would have to seek a court order giving custody of Student to DSS in order to satisfy federal requirements regarding judicial oversight of children in placement.12
At the Motion Hearing, Parents stated their objection to joinder of DSS. Parents explained that they would not voluntarily agree to services that may lead to their losing custody of their son. I do not have the authority to order that Student participate in services rejected by Parents who have educational decision-making authority.
Under these circumstances, I conclude that it would serve no purpose to join DSS and I therefore decline to do so.
ORDER
Attleboro’s Motion to Join Department of Mental Retardation and/or Department of Social Services as Necessary Parties is ALLOWED with respect to the Department of Mental Retardation and DENIED with respect to the Department of Social Services.
By the Hearing Officer,
_________________
William Crane
Dated: October 11, 2002
1
DMR’s Memorandum in Opposition to Joinder at page 2.
2
Pursuant to BSEA Hearing Rule 1F (“Joinder”), 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.
3
MGL c. 71B, s. 3. See also 603 CMR 28.08(3) (regulatory language similar to above-quoted statutory language).
4
In Re: Ipswich Public Schools , BSEA # 02-4324 (July 16, 2002) and BSEA decisions/rulings cited in footnote 2.
5
In Re: Ipswich Public Schools , BSEA # 02-4324 (July 16, 2002) and BSEA decisions/rulings cited in footnote 3.
6
115 CMR 6.05 and 6.07; Family Support Guidelines (Department of Mental Retardation 1999).
7
The Parties have discussed informally the possibility of providing family support services through a program other than its Intensive Flexible Family Supports — for example, through a DMR-DOE initiative.
8
DMR argues that, through its regulations, it maintains sole discretion to determine how to allocate its limited resources. E.g., 115 CMR 6.05 and 6.07. However, if I were to accept this argument, it would essentially render meaningless the authority of a BSEA Hearing Officer to order services from DMR (as well as from the Department of Mental Health and the Department of Social Services) pursuant to MGL c. 71B, s. 3 — a result that the Massachusetts legislature presumably did not intend. See discussion of related issues in In Re: Medford Public Schools , BSEA # 01-3941, 7 MSER 82, 86 & 89 (May 4, 2001) and cases cited therein.
9
118 CMR 6.05 and 6.07.
10
MGL c. 19B, s. 13; c. 123B, s.2. See also In Re: Fitchburg Public Schools , BSEA # 02-0038, 8 MSER 141, 143 (May 9, 2002) (citing these statutes) and cases cited therein at note 4. But see In Re Brockton Public Schools , BSEA # 02-3337 (August 1, 2002) (denying joinder, in part, because student was under the age of 18 years).
11
MGL c. 18B, s. 13.
12
DSS cites to 42 USC 675 and MGL c. 119, ss. 29B and 29C.