COMMONWEALTH OF MASSACHUSETTS
DEPARTMENT OF EDUCATION
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Chelsea Public Schools
BSEA # 01-2623
RULING ON STUDENT’S MOTION FOR INTERIM SERVICES
Introduction
On December 4, 2000, Student (through his attorney) filed a Request for an Expedited Hearing, alleging that Student has been recommended for, but is without, an educational residential placement. The Request for Hearing further alleged that Student is without an educational plan, is receiving no educational services, and has not received services since September 15, 2000. The Bureau of Special Education Appeals (hereafter, BSEA) granted expedited status by letter of December 5, 2000.
Because there has been no substantive dispute regarding either Student’s educational needs or how those needs should be met, no hearing has been held on the merits of this matter. Instead, the parties have been communicating with each other and with the Hearing Officer via telephonic status conferences since December 5, 2000 in an attempt to identify and provide appropriate educational services for Student.
On January 24, 2001, Student filed a Motion for Interim Services. This Motion was heard on January 31, 2001. The parties elected not to file written argument.
Facts
The relevant facts are not in dispute.
Student is eighteen years old (date of birth 6/16/82). His primary language is Spanish. He has been diagnosed with mental retardation (mild or moderate), psychiatric disabilities and perhaps other disabilities.
The Massachusetts Department of Mental Retardation (hereafter, DMR) has completed a competency evaluation of Student by a doctor, licensed psychologist and social worker. The evaluation has determined that Student is not competent and has recommended appointment of a full guardian. DMR has agreed to initiate court proceedings for the purpose of obtaining a guardianship of Student.
Student has had a number of psychiatric hospitalizations. Immediately following the most recent psychiatric hospitalization, DMR placed Student at the Alternative House, a residential mental retardation program, for purposes of respite on September 15, 2000.
Student is in need of an educational residential placement as soon as possible. Chelsea Public Schools has sent “packets” (containing his educational records) to several educational residential schools in order for Student to be considered for placement. It is uncertain if any of these proposed placements will accept Student, or if they do, when Student would be able to begin receiving services there.
Until an appropriate educational residential program is identified and Student begins to receive services there, the parties consider Alternative House to be an appropriate, interim residential placement for Student. The Alternative House is supervised by DMR, it provides certain supervision and assistance to Student (for example, with his medication), but it does not provide educational services to Student. The Alternative House is not approved by the Massachusetts Department of Education (hereafter, DOE) as an educational placement.
As an interim measure until Student is accepted at and begins attending an educational residential placement, Chelsea began providing educational services at the Shore Collaborative day program on January 9, 2001.1 Chelsea anticipates that these day educational services, or alternative services through a related program in Beverly, will continue for Student while Student resides at the Alternative House.
In his Request for Hearing of December 4, 2000, Student advised Chelsea that “[t]here are currently concerns that the Department of Mental Retardation will stop funding for [Student’s] respite at the Alternative House before a residential placement is secured.” By letter of January 12, 2001, Mr. Rod Peterson of the DMR Greater Boston Area Office, Harbor Site, advised Dr. Hazel Grenham, Chelsea’s Director of Special Education, that the DMR respite services for Student at the Alternative House is for short-term emergency or interim placement only and that DMR may end its funding on January 19, 2001.
Student has no other place to reside. He is not able to return home, and no party has suggested any appropriate, residential placement in lieu of the Alternative House.
Neither party has sought to join DMR as a party to this matter before the BSEA.
Analysis
In his Motion for Interim Services, Student requests that this Hearing Officer order that:
1. Chelsea immediately make payments to the Alternative House so that these interim services can continue until Student is placed in an appropriate residential placement; and
2. Chelsea request the assistance of DOE in finding a residential placement and for funding assistance in putting together a residential placement for Student.
Chelsea opposes part 1 of the requested relief (funding of the Alternative House) but does not oppose part 2 of the requested relief (assistance from DOE). I will therefore address part 1 of the requested relief below.
Student filed this Motion because he has good reason to believe that funding of the Alternative House is in jeopardy. Student takes the position that Chelsea is legally required to fund this placement, at least in the interim, until a more appropriate educational residential placement can be found.
It is agreed that the only appropriate long-term placement for Student is an educational residential program. The courts have approved residential educational placements, for example, for students who need a comprehensive, 24-hour, highly structured special education program that would address students’ social and behavioral needs in a consistent manner. David D. v. Dartmouth School Committee , 775 F.2d 411, 416 (1 st Cir. 1985).
The courts have also recognized that, in an appropriate situation, residential educational services may be provided by combining a day educational program with a group home where the group home meets “specific educational criteria.” Abrahamson v. Hershman , 701 F.2d 223, 229 (1 st Cir. 1983).
Chelsea accepts responsibility for providing residential educational services to Student. However, Chelsea takes the position that it has no responsibility to fund services at Alternative House since it is not providing educational services and is not approved by DOE as an educational placement.
It is not disputed that Student (who is 18 years old, cannot return home, has a dual diagnosis of mental retardation and psychiatric disability, and has been determined to be incompetent) needs to receive residential services from a public agency. And, it is apparent that Student must attend some residential program (which provides supervision and assistance — for example, assistance with medication) in order to be able to continue to receive and benefit from his educational services during the day. No party has suggested that there is a currently available, appropriate, interim residential placement other than the Alternative House.
In this context, I conclude that Student’s continued placement at the Alternative House is necessary in order for Student to be able to continue to receive and benefit from his educational services at Shore Collaborative.2
It is apparent that Student is in jeopardy of being caught in the middle of a dispute between two public agencies — Chelsea and DMR. The underlying issue may be framed in terms of which of these two public agencies has responsibility for providing or funding residential services at the Alternative House on an interim basis until an appropriate educational residential placement is located.
The BSEA has been charged by the state legislature and by DOE (through its regulations) to resolve disputes between a school district and a state agency, including DMR, when that dispute impacts upon a student’s special education. In order to resolve these kinds of disputes, the BSEA not only may order the school district to provide the requisite services but may also order, in an appropriate case, that DMR (and other human service agencies) provide services which are in addition to a student’s special education services. MGL c. 71B, s. 3, as amended by chapter 159, section 162 of the Acts of 2000; 603 CMR 28.08(3).
Chelsea was advised as early as December 4, 2000 (through Student’s Request for Hearing) that DMR may discontinue funding of the Alternative House before Chelsea located an appropriate educational residential placement. Chelsea was again advised by letter of January 12, 2001 from DMR to Chelsea’s Director of Special Education that termination of funding may be imminent. Yet, Chelsea has not sought to join DMR in this matter in order that the funding dispute between Chelsea and DMR may be resolved.
I now turn to the question of whether I may order Chelsea to fund, on an emergency, interim basis, residential services at the Alternative House.
Chelsea argues that it should not have to fund residential services at the Alternative House since it is agreed that Alternative House does not provide educational services, and is not approved by DOE.
While Chelsea’s arguments, in so far as they are presented, may appear to be persuasive, there are several countervailing points which must be considered and which ultimately lead me to conclude that Chelsea’s position should not be sustained.
First, it is agreed that the only appropriate educational services for Student are an educational residential placement. Since at least September 15, 2000 when Student was discharged from a psychiatric hospital and placed at the Alternative House, Chelsea has not been able to locate an appropriate educational residential placement for Student, with the result that Student has not received the educational services to which he is entitled. One cannot predict if or when Chelsea will be able to locate an appropriate educational residential placement.
It is generally accepted that when a school district is not able to locate appropriate services, the school district has a responsibility to create such services. Presently, it seems apparent that there is only one possible avenue open to Chelsea for creating appropriate educational residential services, and that would be for Chelsea to add the requisite educational services to the residential services already being provided at the Alternative House. Chelsea has neither attempted to do so nor demonstrated why it would be unable to do so. For these reasons, Chelsea should not now be allowed to avoid responsibility for funding residential services at the Alternative House on the basis of an argument that no educational services are currently being provided there.
Rather, Chelsea should now determine what educational and related services it may be obligated to add to the services currently being provided at the Alternative House in order to more fully meet Student’s educational needs.
Second, Chelsea has accepted responsibly for providing a residential educational placement. Chelsea now seeks to avoid responsibility for Student’s residential services because these services do not meet educational standards. To allow Chelsea to prevail with this argument not only jeopardizes Student’s ability to continue to receive and benefit from necessary educational day services, but also allows Chelsea to avoid any responsibility for residential services solely because it has not yet been able to provide Student with the appropriate, long-term placement. In effect, this would leave Student only with a future claim for compensatory education services as a result of the continuing inability of Chelsea to locate or create an appropriate educational residential placement.
Finally, I note that this matter may be analogous to a private school placement by a parent who, in the face of inadequate or non-existent services from the school district, has no choice but to seek a placement on his own and then seek reimbursement. (In the present matter, of course, Student does not seek reimbursement but rather an interim continuation of a residential placement initially provided by a state agency in the face of the school district not providing any residential services.) In the former situation, a Massachusetts federal district court has concluded that the services arranged by the parent need not be designated as a “special education” program in order to constitute a proper placement for purposes of reimbursement. Nor is it dispositive that the private school does not offer “special education” services. Instead, the court looked to whether the services the private school provides are “appropriately responsive to student’s needs.” Matthew J. v. Mass. Department of Education , CA No. 94-30172, slip opinion at 29-30 (DMass. 1/5/98). See also Florence County School District Four v. Carter , 510 US 7 (1993) (reimbursement not necessarily barred by a private school’s failure to meet state education standards). It is not disputed that the Alternative House has been appropriately responsive to Student’s interim needs.
For these reasons, I find Chelsea’s arguments unpersuasive.
I now turn to the question of whether a BSEA Hearing Officer has the authority to order Chelsea to provide the residential services at the Alternative House. A special education student is entitled to receive a free appropriate public education which includes both special education and related services. 34 CFR 300.300, 300.13. The term “related services” is defined to include “such developmental, corrective, and other supportive services as are required to assist a child with a disability to benefit from special education ….” 34 CFR 300.24(a). Massachusetts has explicitly adopted this federal definition. 603 CMR 28.02(19).
The Alternative House provides Student not only with meals and a place to sleep, but also with supervision and assistance – for example, with medication. As explained above, I have found that these services are necessary in order for Student to participate in and benefit from his educational services currently being provided at Shore Collaborative. In addition, I anticipate that, as a result of this Ruling, Chelsea will add educational and/or related services to the services currently being provided at the Alternative House.
I note further that the rationale of Florence County and Matthew J. , discussed supra , supports an order that Chelsea continue Student’s placement at the Alternative House.
For these reasons, I conclude that I have the authority to order that Chelsea fund or otherwise ensure the continuation of the Alternative House placement on an emergency, interim basis until more appropriate services are located or created.3
Order
For these reasons, Student’s Motion for Interim Services is hereby ALLOWED, consistent with the following.
In the event DMR terminates funding of Student at the Alternative House, Chelsea shall immediately have responsibility to ensure Student’s continued placement at Alternative House (through payment to Alternative House or such other arrangement as may be necessary to ensure Student’s continued placement); and such responsibility shall continue until either (1) Student is placed in an appropriate educational residential placement, (2) a public agency (other than Chelsea) is found to be responsible for Student’s placement at the Alternative House, or (3) this Hearing Officer otherwise orders that said responsibility should discontinue.
Chelsea shall forthwith convene a Team meeting to determine what educational and related services Chelsea is obligated to provide Student at the Alternative House.
Chelsea shall forthwith request the assistance of DOE in finding an educational residential placement and for funding assistance in putting together an educational residential placement for Student.
By the Hearing Officer,
_________________
William Crane
Dated: February 1, 2001
1
This placement has also been for purposes of observation of Student. Chelsea has been evaluating Student in order to obtain more recent information which has then been included in the “packets” sent to proposed educational residential placements.
2
Although not strictly relevant to this Ruling, I also conclude that Student’s continued placement at the Alternative House is necessary to protect his health and safety.
3
A BSEA Hearing Officer has authority, pursuant to MGL c. 71B, s. 3, to order:
the [educational] placement or services requested by the school committee, the [educational] placement or services requested by the parent, either of those placements or services with modifications, or such alternative programs or services as may be required to assure [the maximum possible development in the least restrictive environment] of such child.
See also 603 CMR 28.08(3).