Christian A. and Worcester Public Schools – BSEA # 10-3387
COMMONWEALTH OF MASSACHUSETTS
Bureau of Special Education Appeals
In Re: Christian A. and Worcester Public Schools
CORRECTED RULING ON MOTION TO JOIN
This matter comes before the Bureau on the Motion of the Worcester Public Schools to Join the Department of Children and Families (hereinafter “DCF”) to this appeal. On December 1, 2009 the Parent requested a hearing seeking a determination that the Student requires a 24 hour, seven day per week, residential program in order to receive a free, appropriate public education. The Student currently attends an out of state residential educational program during the school week, but returns home on weekends. Worcester contends that the five day per week residential placement is the least restrictive, appropriate, educational option for the Student. It argues that were DCF to provide appropriate home supports and services for the family, the Student could continue to benefit educationally from the school week program and could generalize that learning to his home and community. The DCF opposes joinder stating that the Student is not in the care or custody of DCF, that it is providing minimal, voluntary services to the family, and that its involvement does not affect resolution of the central issue before the Bureau: whether the Student requires a full week residential special education program in order to receive a free, appropriate public education?
BSEA Hearing Rule J. provides for involuntary joinder of a party to a BSEA proceeding when complete relief cannot be granted among the existing parties, or 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 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 issues1
After careful consideration of the scant and undisputed facts asserted in this matter, it is my determination that joinder is not warranted at this time. The family is seeking a full time residential placement for educational reasons. Thus the inquiry at hearing will be whether the current evaluations, performance and potential of the Student support the Parent’s position that a seven day per week residential placement is the least restrictive, appropriate program in which the Student’s special education needs can be met. Should the Parent prove that contention, the Worcester Public Schools would be solely responsible for ensuring the appropriate level of special education instruction to the Student. On the other hand, should Worcester prove that its offer of five day per week residential educational programming addresses all the Student’s special education needs, the scope of proposed DCF services will become clearer. The rights and duties of both the School and the Parent will be efficiently clarified, and not significantly prejudiced, in a two party hearing. At this time the DCF has insubstantial involvement with the Student and his family. There will be an opportunity after the BSEA hearing for DCF to re-assess the need or responsibility for additional student centered services, and if necessary, to partner with the Worcester Public Schools to deliver them.
By the Hearing Officer,
Dated: March 9, 2010
See also: M.G.L. 71Bs.3; 603 CMR 28.08 (3). In Re: Lawrence Public Schools, 14 MSER 1 (2009);
In Re: Worcester Public Schools , 14 MSER 435 (2009).