COMMONWEALTH OF MASSACHUSETTS
SPECIAL EDUCATION APPEALS
In Re: Dennis-Yarmouth Regional School District
BSEA # 01-3852
DECISION
This decision is issued 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.
A hearing was held on June 27, 2001 in Malden, MA, before William Crane, Hearing Officer. Those present for all or part of the proceedings were:
William Butler Attorney for Dennis-Yarmouth Regional School District
David Kennedy Director of Special Services, Dennis-Yarmouth RSD
Debra Comfort Attorney for the Massachusetts Department of Education
Elizabeth Kurlan Attorney for the Boston Public Schools
Reece Erlichman Boston Public Schools
Mary Ellen Sowyrda Attorney for the Lynn Public Schools
Lisa Anderson Paralegal for the Lynn Public Schools
Marlaine Potter Lynn Public Schools
The official record of the hearing consists of documents submitted by the Dennis-Yarmouth Regional School District (hereafter, DYRSD) and marked as exhibits 1 through 6 (hereafter, Exhibit DYRSD 1, etc.); a single document submitted by the Boston Public Schools (hereafter, BPS) and marked as Exhibit BPS 1; a single document submitted by the Lynn Public Schools (hereafter LPS) and marked as Exhibit LPS 1; and approximately two hours of recorded oral testimony and argument, including oral closing arguments, on June 27, 2001.
ISSUE PRESENTED
Does the Dennis-Yarmouth Regional School District, the Boston Public Schools, and/or the Lynn Public Schools have programmatic and/or fiscal responsibility for Student’s special education and related services?
HISTORY
Student is a fourteen-year-old (DOB 7/16/86) youngster who is receiving residential special education services at the Kennedy Hope Academy which is part of Franciscan Children’s Hospital in Brighton, MA. He has been within the care and custody of the Massachusetts Department of Social Services (hereafter, DSS) since 1995.1
By letter of February 12, 2001 from Marcia Mittnacht (State Director for Special Education), the Massachusetts Department of Education (hereafter, DOE) assigned programmatic and fiscal responsibility for Student’s special education to DYRSD.2
By letter of March 11, 2001 to the Bureau of Special Education Appeals (hereafter, BSEA), DYRSD requested a Hearing to appeal this assignment of responsibility pursuant to 603 CMR 28.03(4)(h).
In its March 11 th letter, DYRSD took the position that Student’s mother (hereafter, Mother) resides currently in Boston and therefore “Boston shares programmatic and fiscal responsibility for this student.” On March 26, 2001, DYRSD filed a Motion to Join Boston Public Schools, reiterating its view that Mother resides in Boston and taking the position that DYRSD and BPS are “jointly responsible for [Student’s] special education program pursuant to 603 CMR s. 28.03(4)(e).”
A Pre-Hearing and a Motion Hearing were scheduled for May 21, 2001. During the Pre-Hearing, DYRSD filed a memorandum supporting its Motion to Join BPS, and BPS filed an opposition to said Motion. BPS took the position that LPS, rather than BPS, was partially or wholly responsible for Student’s special education because Mother allegedly resided in Lynn, MA, when she surrendered her son for adoption.
At the Pre-Hearing, it was agreed that rather than going forward with the Motion Hearing, it should be postponed to allow DYRSD time to file a Motion to Join LPS. It was further agreed that the Motion Hearing would be combined with a Hearing on the merits.
On June 21, 2001, DYRSD filed a Motion to Join Lynn Public Schools . On June 25, 2001, LPS filed an opposition to said Motion. On June 26, 2001, BPS filed an addendum to its earlier opposition to the Motion to Join Boston Public Schools .
A combined Hearing on the Motions and the merits was held on June 27, 2001.
STATEMENT OF THE EVIDENCE
At the Hearing, DYRSD, DOE, BPS and LPS stipulated to the following facts (hereafter, Stipulation 1, etc.):
1. Student is currently (and has been since 1995) in the care and custody of DSS. Neither parent has physical custody of Student.
2. Student is currently receiving residential educational services at the Kennedy Hope Academy which is at the Franciscan Children’s Hospital in Brighton, MA.
3. Father is currently (and has been since approximately 1996) living in a nursing home in Wareham, MA.
4. Immediately prior to entering the nursing home, Father lived in Dennis, MA, which is within the Dennis-Yarmouth Regional School District.
5. Mother voluntarily surrendered Student for adoption on 11/12/95.
6. DOE assigned programmatic and fiscal responsibility to DYRSD by letter of February 12, 2001.
Daniel Kennedy testified that he is the Director of Special Services for DYRSD. He noted that as a result of receiving the assignment letter from DOE (Exhibit DYRSD 1), he inquired into matters related to the responsibility of DYRSD for Student. He explained that as a result of this inquiry, he determined that Exhibit DYRSD 6 is a school registration form used by DYRSD; the first page of this document was completed by Father; and the second page was rewritten by a school secretary to reflect what is written on the first page.
Mr. Kennedy testified that he inquired with the DYRSD school psychologist who remembered Student and who referred Mr. Kennedy to Student’s maternal aunt (Patricia Violet); the maternal aunt informed Mr. Kennedy by phone that Mother had been living in Lynn, MA, for the last several years. Mr. Kennedy further testified that he spoke with the Yarmouth Chief of Police who told Mr. Kennedy that Mother’s address (as of March 21, 2001) was listed as 784 Massachusetts Avenue, Boston, MA.
A February 12, 2001 letter to Christopher Russo, DSS, from Marcia Mittnacht, the State Director for Special Education, DOE, assigned programmatic and fiscal responsibility to DYRSD. The letter states that Student lives at and receives educational services at Franciscan Children’s Hospital in Brighton, and Father resides in Millbrook Nursing Home in Massachusetts. The letter cites to DOE assignment regulations 603 CMR 28.03(4)(b) and (f). Exhibit DYRSD 1.
A February 5, 2001 Request for Clarification or Assignment of School District, submitted by DSS indicates Mother’s residence as Osterville, MA. Father’s residence is indicated as the Millbrook Nursing Home in Wareham, MA, from 1/98 to present and Dennis, MA, until 12/97. Student’s address is indicated as Osterville, MA, to 10/99; South Yarmouth, MA, from 10/99 to 11/99; the Franciscan Hospital (RAP Unit) in Brighton, MA, from 11/99 to 10/00; and the Franciscan Hospital (Kennedy Hope Academy) from 10/00 to present. Student’s current education placement is listed as the Kennedy Hope Academy at Franciscan Children’s Hospital in Brighton, MA. Exhibit DYRSD 4.
An April 12, 2000 Request for Clarification or Assignment of School District, submitted by DSS indicates Father’s residence as the Millbrook Nursing Home in Wareham, MA. No residence is indicated for Mother. Student’s address is indicated as Osterville, MA, from 8/95 to 10/99; South Yarmouth, MA, from 10/99 to 1/00; and the Franciscan Hospital in Brighton, MA, from 1/20/00 to present. Exhibit DYRSD 3.
A November 19, 1999 Request for Clarification or Assignment of School District, submitted by DSS indicates Mother’s last known address as Lynn, MA, and Father’s last known address as Dennis, MA. Student’s address is indicated as another family’s home in Osterville, MA, from 8/95 to 10/99. Exhibit DYRSD 2.
A May 21, 2001 affidavit from Albert Silva, Supervisor, DSS Cape and Islands Office states in part, based on his personal knowledge and belief, that:
[Student’s] mother voluntarily surrendered [Student] for adoption on 11/12/95. The surrender was witnessed by individuals who reported their addresses to be in Lynn, Massachusetts. The document was notarized by an individual from Essex County, Massachusetts. The mother is not required to state her address on the adoption surrender. However, according to DSS records, the mother resided in Lynn, Massachusetts.
Mr. Silva further states in his affidavit that he is a social worker employed by DSS and assigned to the Cape and Islands Area Office, and that he is currently the supervisor of the DSS case involving Student. Exhibit DYRSD 5.
An undated Ezra H. Baker School Student Registration Form indicates that at the time that the form was completed, Student was attending public school in Dennis, MA, and also residing with Father in Dennis, MA. Exhibit DYRSD 6.
A BPS Verification of Address Request Form indicates that 784 Massachusetts Avenue, Boston, MA, is the Mallery Institute of Pathology (the county morgue). The BPS Verification further states that “parent does not live at [this] address.” Exhibit BPS 1.
An e-mail from Sheila Astuccio (the LPS “MIS Director / Computer Implementation”) to Marlaine Potter indicates that Ms. Astuccio has researched the central database that has been in operation for thirteen years, and “we have no history of [Student’s] attending the Lynn Public Schools in this database.” Exhibit LPS 1.
FINDINGS AND CONCLUSIONS
Student is an individual with a disability, falling within the purview of the Individuals with Disabilities Education Act (IDEA)3 and the state special education statute.4 Neither his status nor his entitlement is in dispute.
The issue presented is which school district(s) have programmatic and/or fiscal responsibility for Student’s special education and related services.
A. Responsibility of the Dennis-Yarmouth Regional School District (DYRSD) .
Pursuant to Massachusetts special education regulations, DOE has the authority to assign a school district responsibility for a child’s special education and related services. DOE may assign (or a school district or an agency may request assistance in assigning) responsibility when a parent’s residence is in dispute or the student is not receiving services.5 In this case, DSS initiated the request for assignment by DOE, apparently because of uncertainty as to the responsible school district(s).6
When making an assignment, DOE uses certain criteria. The regulations explain:
The Department [of Education] shall use the following criteria to assign a city, town or school district responsibility for the provision of special education to a child under this section:
1. The last known Massachusetts residence of the child’s father, mother, or guardian prior to moving from the Commonwealth, dying, surrendering the child for adoption, or having parental rights terminated.
. . . .
3. If a father, mother, or guardian resides in an institutional setting in Massachusetts, including, but not limited to, a correctional facility, a hospital, a nursing home or hospice, or a mental health facility, responsibility for fulfilling the requirements of these regulations rests with the school district of residence of such mother, father or guardian immediately prior to his/her entry into such institutional setting.7
Father’s “school district of residence”, immediately prior to his entering the Millbrook Nursing Home, determines the responsible school district.8 Father’s residence at that time was Dennis, MA, which is within the Dennis-Yarmouth Regional School District. Accordingly, DOE assigned programmatic and fiscal responsibility to DYRSD.9
DYRSD does not dispute its responsibility for Student’s special education and related services, based on Father’s residence in Dennis. However, DYRSD argues that it should not bear sole responsibility. DYRSD takes the position that, on the basis of Mother’s residence, either BPS or LPS should be jointly responsible with DYRSD.
B. Responsibility of the Lynn Public Schools (LPS) .
DYRSD points to the above-quoted regulatory language, indicating that Mother’s residence, at the time of surrendering her son for adoption, should be used to determine the responsible school district.10 There is evidence in the record indicating that at the time of surrendering her son for adoption, Mother resided in Lynn, MA.11 At the Hearing, the LPS attorney agreed that Mother resided in Lynn at this time.12
DYRSD appears to make a persuasive argument since a plain reading of 603 CMR 28.03(4)(g)(1) leads one to the conclusion that LPS should be considered a responsible school district. When two school districts are responsible because the parents are living in separate cities or towns, the school districts may be found jointly responsible.13
This reading makes an assumption that where both subsection (1) and subsection (3) of 603 CMR 28.03(4)(g) apply on their face (as they do in this case), they should be used concurrently to assign joint responsibility, as compared to applying only one of the two subsections to determine responsibility. However, nothing within the language of 603 CMR 28.03(4)(g)(1) requires that it govern the assignment of school district responsibility when another subsection within these regulations (in this case, 603 CMR 28.03(4)(g)(3)) can be used to resolve the matter.
I conclude that this regulatory language could be read either to assign exclusive responsibility to DYRSD or joint responsibility to LPS and DYRSD. I therefore turn to the purpose of the regulations to seek to understand which reading is correct.
The Massachusetts Supreme Judicial Court decision in Walker Home for Children v. Franklin14 provides guidance. The Court concluded that, pursuant to MGL c. 71B, the assignment of the school district responsible for the special education of a child must be determined on the basis of the child’s residence. The Walker decision acknowledged that DOE has the authority to determine, through its regulations, the standards to resolve issues of school district responsibility where a child’s residence may be in doubt, but “the department’s authority with respect to the assignment of fiscal responsibility is limited to the question of determining where a child resides.”15 I therefore will assess the alternative readings of the regulations in terms of their consistency with the underlying determination of Student’s residence.
In Walker , as in the present controversy, the special needs student(s) were in a residential educational placement at the time of the dispute. The Court concluded, as do the state special education regulations, that such a placement does not constitute the student’s residence for these purposes.16 One then turns to parents’ residence(s) to determine Student’s residence.
An analysis of this issue is aided by reviewing the sequence of relevant events in the present controversy.
On November 12, 1995, Mother surrendered Student (her son) for adoption. At that time, Student appeared to be living temporarily with a family in Osterville, MA, perhaps as a result of being under the care and custody of DSS. At some time prior to Student’s going to live with the Osterville family, he was living with his father in Dennis and going to public school there. Student apparently never attended school in Lynn.17
Once Mother surrendered her son for adoption, she relinquished her rights as a parent, thereby making her residence no longer relevant for purposes of determining the residence of her son. Father continued to have parental rights although DSS presumably had physical custody of Student. For purposes of assigning responsibility to a school district, Student’s residence would therefore have been either Dennis (where Father lived) or Osterville (where Student lived with another family).18
Student later moved to his current residential educational placement at the Kennedy Hope Academy in Brighton, MA. As discussed above, the location of the residential educational placement does not constitute the residence of Student. This leaves the place of residence of Father as determinative of the responsible school district.
Father moved from Dennis to a nursing home in Wareham in 1996.19 As discussed above in section A of this Decision, the state special education regulations take the position (and DYRSD agrees) that Father’s residence, for purposes of determination of school district responsibility, remains as Dennis under these circumstances.20
I find that Mother’s residence became irrelevant once she gave up her parental rights on November 12, 1995. None of the subsequent events (including Student’s admission to the Kennedy Hope Academy in Brighton and Father’s move to a nursing home in Wareham) alters this result.21
The facts (and conclusions based on those facts) in Walker further support this finding. In Walker , the parents were divorced and living in separate school districts. The mother had physical custody of her two children. The children visited their father where he lived (Franklin), but the children did not live or attend school there. The Court explained that the residence of a minor child generally is the same as the parent with physical custody, and determined that the children’s residence was that of their mother, thereby making the mother’s resident school district (Milford) solely responsible for their education.22
In the present controversy, Mother is in a position analogous to the father in Walker . In both situations, the children have not attended school in the city or town where this parent lived.23 The Mother who has surrendered her child for adoption (in the present controversy) would appear to have less connection to the child’s residence than the divorced father who does not have physical custody but who nevertheless retains parental rights (in Walker ). And, in both the present controversy and Walker , the other parent has sufficient ties with the child to establish the child’s residency in that parent’s own place of residence. The Court concluded, on the basis of these facts, that the father’s residence (in Walker) should not determine school district responsibility. By analogy, school district responsibility in the present controversy should not be determined on the basis of Mother’s residence.
One might argue that this result would render a nullity that part of the state special education regulations which provides for a responsible school district to be the municipality where a parent resides when he/she surrenders a child for adoption.24 I find this argument unpersuasive. Consistent with the Walker decision, this regulatory language may apply and determine school district responsibility where a parent gives up his/her child for adoption and, at that time, there is no other parent with respect to whom the child’s residence may be appropriately determined. This could occur, for example, when there is no other living parent or there is no parent living within the Commonwealth.
I conclude that school district responsibility must be based on Student’s residence, which in turn must be based on Father’s (not Mother’s) place of residence. Elimination of Mother’s residence from consideration means that LPS cannot be found responsible for Student’s special education.
C. Responsibility of the Boston Public Schools (BPS) .
DYRSD alternatively argues that BPS should be jointly responsible for Student’s special education because Mother allegedly now lives in Boston. In support of this argument, DYRSD points to the regulatory definition of “parent’s school district” as the “district(s) where the parent(s) are living or were last known to be living . . . .”25
For the same reasons that Mother’s Lynn residence in 1995 is not relevant to a determination of the responsible school district (see discussion above in part B of this Decision), her current residence and her last known residence are also not relevant.
Also, if Mother’s current or last known residence were relevant, DYRSD has not established this to be Boston. The only evidence submitted by DYRSD in this regard was a conversation between Mr. Kennedy and the Yarmouth Chief of Police who apparently found a record of Mother living at 784 Massachusetts Avenue in Boston.26 When a BPS official went to this address, he found it to be a county morgue and that Mother was not living there.27 At the Hearing, when asked by the Hearing Officer, DYRSD could offer no explanation for this apparent inconsistency in the evidence. I conclude that DYRSD has not presented credible evidence upon which I am able to determine Mother’s current or last known residence to be in Boston.
D. Conclusions .
For the reasons explained above, I find that LPS and BPS should not be considered responsible for Student’s special education and related services. Therefore, DYRSD’s Motion to Join LPS and Motion to Join BPS will be denied. I further find that DYRSD is solely responsible for said services, based on Father’s residence in Dennis, MA, and accordingly will affirm DOE’s assignment of responsibility.
ORDER
Dennis-Yarmouth Regional School District’s Motion to Join Boston Public Schools is DENIED.
Dennis-Yarmouth Regional School District’s Motion to Join Lynn Public Schools is DENIED.
The Massachusetts Department of Education’s assignment of fiscal and programmatic responsibility to the Dennis-Yarmouth Regional School District is AFFIRMED.
By the Hearing Officer,
William Crane
Dated: July 11, 2001
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
EFFECT OF BUREAU DECISION AND RIGHTS OF APPEAL
EFFECT OF DECISION AND RIGHTS OF APPEAL
The decision of the Bureau of Special Education Appeals is final and is not subject to further agency review. Because 20 USC s. 1415(i)(1)(B) requires the Bureau decision to be final and subject to no further agency review, the Bureau cannot permit motions to reconsider or to re-open a Bureau decision, once it is issued. Any party aggrieved by the Bureau decision may file a complaint in the Superior Court of competent jurisdiction or in the District Court of the United States for Massachusetts for review of the Bureau decision. 20 USC s. 1415(i)(2). Under Massachusetts General Laws, Chapter 30A, Section 14(1), appeal of a final Bureau decision must be filed within 30 days of receipt of the decision.
Except as set forth below, the final decision of the Bureau must be implemented immediately. Under G.L. c. 30A, s. 14(3), appeal of the decision does not operate as a stay; rather, a party seeking to stay the decision of the Bureau must seek such stay from the court having jurisdiction over the party’s appeal.
Under the provisions of 20 USC s. 1415(j), “unless the State or local education agency and the parents otherwise agree, the child shall remain in the then-current educational placement,” during the pendency of any judicial appeal of the Bureau decision, unless the child is seeking initial admission to a public school, in which case “with the consent of the parents, the child shall be placed in the public school program,” 20 USC s. 1415(j). Therefore, where the Bureau has ordered the public school to place the child in a new placement, and the parents or guardian agree with that order, the public school shall immediately implement the placement ordered by the Bureau. School Committee of Burlington, v. Massachusetts Department of Education , 471 U.S. 359 (1985). Otherwise, a party seeking to change the child’s placement during the pendency of judicial proceedings, must seek a preliminary injunction ordering such a change in placement from the court having jurisdiction over the appeal. Doe v. Brookline , 722 F.2d 910 (1st Cir. 1983); Honig v. Doe , 484 U.S. 305 (1988).
RECORD OF THE HEARING
The Bureau of Special Education Appeals will provide an electronic verbatim record of the hearing to any party, free of charge, upon receipt of a written request. Pursuant to MGL c.30A, ss. 11(6) and 14(4), an appealing party seeking a certified written transcription of the entire proceedings, must arrange for the transcription, or portion thereof, by a certified court reporter, at his/her own expense. Transcripts prepared by the party must then be submitted to the Bureau of Special Education Appeals with appropriate court reporter certification for final review and certification. A party unduly burdened by the cost of preparation of a written transcript of the sound recordings may petition the Bureau of Special Education Appeals for relief.
COMPLIANCE
A party contending that a decision of the BSEA is not being implemented may file a complaint with the Department, whose responsibility it shall be to investigate such complaint. 603 CMR s. 28.00, par. 407.0.
In addition, the party shall have the option of filing a motion with the Bureau of Special Education Appeals, requesting the Bureau to order compliance with the decision. The motion shall set out the specific area of alleged non-compliance. The Hearing Officer may convene a hearing at which the scope of inquiry will be limited to facts bearing on the issue of compliance, facts of such nature as to excuse performance and facts bearing on a remedy. Upon a finding of non-compliance, the Hearing Officer may fashion appropriate relief and refer the matter to the Legal Office of the Department of Education for enforcement.
CONFIDENTIALITY
In order to preserve the confidentiality of the child involved in these proceedings, when an appeal is taken to Superior Court or to Federal District Court, the parties are strongly urged to file the complaint without identifying the true name of the parents or the child, and to move that all exhibits, including the transcript of the hearing before the Bureau of Special Education Appeals, be impounded by the court. See, Webster Grove School District v. Pulitzer Publishing Company , 898 F.2d 1371 (8th Cir. 1990). If the appealing party does not seek to impound the documents, the Bureau of Special Education Appeals, through the Attorney General’s Office, may move to impound the documents.
NOTICE OF REVISED BUREAU PROCEDURES
ON RECONSIDERATION/REHEARING
The United States Department of Education, Office of Special Education Programs (OSEP) in its 1990 Monitoring Report, issued July 17, 1991, ordered the Bureau to amend its procedures to eliminate the availability of reconsideration or re-opening as post-decision procedures in the Bureau cases. Accordingly, parties are notified that the Bureau will not entertain motions for reconsideration or to re-open. Bureau decisions are final decisions subject only to judicial review.
In addition, parties should be aware that the federal Courts have ruled that the time period for filing a judicial appeal of a Bureau decision is thirty (30) days, as provided in the Massachusetts Administrative Procedures Act, MGL c.30A. See, Amann v. Town of Stow , 991 F.2d 929 (1 st Cir. 1993); Gertel v. School Committee of Brookline , 783 F. Supp. 701 (D. Mass. 1992). Therefore, an appeal of a Bureau decision to state superior court or to federal district court must be filed within thirty (30) days of receipt of the Bureau decision by the appealing party.
1
Exhibits DYRSD 1, DYRSD 4; Stipulations 1, 2.
2
Exhibit DYRSD 1; Stipulation 6.
3
20 USC 1400 et seq .
4
MGL c. 71B.
5
603 CMR 28.03(4)(f).
6
Exhibits DYRSD 1, DYRSD 4.
7
603 CMR 28.03(4)(g).
8
603 CMR 28.03(4)(g)(3) (quoted above).
9
Exhibit DYRSD 1; Stipulation 6.
10
603 CMR 28.03(4)(g)(1).
11
Exhibits DYRSD 2, DYRSD 5.
12
At the Hearing, DOE initially argued that LPS should not be considered to be jointly responsible because there was no “verifiable” address for Mother in Lynn. However, after LPS acknowledged that Mother lived in Lynn when she gave up her son for adoption, DOE’s attorney took the position that, based on this new information, LPS and DYRSD should be jointly responsible for Student’s special education.
13
603 CMR 28.03(4)(e).
14
416 Mass. 291, 621 NE2d 376 (1993).
15
Id . at 296-297.
16
Id . at n. 8, p. 267 (“municipality is not relieved of its responsibility for a special needs student because that student participates in a special education program in a residential seeing elsewhere”); 603 CMR 28.02(20).
17
Exhibits DYRSD 2, DYRSD 4, DYRSD 5, DYRSD 6, LPS 1.
18
603 CMR 28.03(4)(a).
19
Stipulation 3.
20
603 CMR 28.03(4)(g)(3).
21
At the Hearing, DYRSD acknowledged that once Mother surrendered her son for adoption (on November 12, 1995), DYRSD would have been the responsible school district if, at that time, both Father and Student had been living in Dennis and Student had been attending public school there. In other words, it was agreed that under these hypothetical facts, Mother’s residence would have been irrelevant. Yet, the actual facts at that time (Student living in Osterville and perhaps attending school there, while Father lived in Dennis) do not some how make Mother’s residence (Lynn) relevant to a determination of Student’s place of residence once Mother has surrendered her son for adoption.
22
416 Mass. at 295, 297.
23
Exhibit LPS 1.
24
603 CMR 28.03(4)(g)(1).
25
603 CMR 28.02(16).
26
Testimony of Kennedy.
27
Exhibit BPS 1.