Greater Lawrence Regional Vocational High School and North Andover Public Schools – BSEA #99-3370

<br /> Special Education Appeals BSEA #99-3370<br />

THE COMMONWEALTH OF MASSACHUSETTS

DEPARTMENT OF EDUCATION

BUREAU OF SPECIAL EDUCATION APPEALS

IN RE: Greater Lawrence Regional Vocational High School and North Andover Public Schools

BSEA #99-3370

RULING ON MOTION

This matter comes before the Hearing Officer on the Motion of the Greater Lawrence Regional Vocational High School to Join the Department of Mental Retardation as a party in this special education appeal. A hearing on the Motion was held on September 8, 1999. The Guardians and the North Andover Public Schools, through their respective counsel, joined in supporting the Motion to Join. The Department of Mental Retardation opposed Joinder.

The Hearing Rules for Special Education Appeals permit a potential party to be joined when “ complete relief cannot be granted among those who are already parties, or the person being joined has an interest relating to the subject matter of the case and is so situated that the case cannot be disposed of in their absence.” Rule 1F. See also 801 CMR 1.01(7)

The determination of whether a proposed party should be joined is grounded in equity. Factors which must be considered are: the risk of prejudice to the present parties in the absence of the proposed party; the range of alternatives for fashioning relief; the potential for an inadequate judgment without the proposed party’s participation; and the availability of an alternate forum to resolve the issues. See Rule 1F; M.R.C.P. Rule 19. In Re: BSEA No. 93-2353.

The facts relevant to the Motion to Join are undisputed. The Student is eighteen years old. His father and his father’s partner have been appointed permanent guardians. They live together in North Andover. The Student attends a 502.3 program at the Greater Lawrence Regional Vocational High School. The Parties agree that this program is appropriate for him; they also agree that the Student requires additional supports and services in order to derive the maximum feasible benefit from participation in the educational program and to be safe at home and in the community. The Student has been determined to be eligible for Department of Mental Retardation services. He currently receives respite and case management services through the Department of Mental Retardation.

In support of the Motion to Join the Department of Mental Retardation the Guardians and the Schools argue that the Department has information, experience, and expertise that are crucial in order to design and implement an individually tailored education plan for this Student. They point out that the Student has already been determined to be eligible for Department services and that the services typically arranged or provided by the Department: residential, vocational support and training, daily living and community skills instruction, socialization experiences; are precisely those which would permit this Student to remain in and benefit from the least restrictive educational placement. They further contend that the State’s obligation to ensure that each special needs student receives a comprehensive, individually designed plan of services to address his or her educational needs in the least restrictive setting requires that the Bureau exercise jurisdiction over all public agencies that provide services to individuals with disabilities under the age of 22.

In opposing the Motion to Join, the Department argues that: it does not provide direct services to students under the age of twenty-two, but rather to their families; that it does not offer “educational” services; that this Student has no individual entitlement to any services from the Department; that complete relief can be afforded to the Student with the existing school district parties, and therefore that the Bureau of Special Education may not properly assert jurisdiction over the Department of Mental Retardation.

After careful consideration of the thorough and articulate arguments of counsel for the present and proposed parties, I find that joinder of the Department of Mental Retardation is both proper and warranted in this matter. First, the Bureau of Special Education Appeals has been designated by the General Court, as required by federal law, as the only forum with authority to adjudicate issues arising out of the provision or denial of special education services to any student by any governmental entity within Massachusetts. 20 U.S.C. § 1412; § 1413; 34 CFR 300.21. See also: 34 CFR 300.141; 300.142; 300.341; 300.600. M.G.L. c. 71B s.3; 603 C.M.R. 28.0.400; Department of Public Health v. Town of Tewksbury , 18 IDELR 666 (1992) affirming In Re: Christopher K. BSEA #89-1843 (1991). I find that this grant of jurisdiction is broad enough to encompass oversight of the activities of any public agency, including the Department of Mental Retardation, which provides, or denies, services which may be regarded as educational, or supportive or related to education, to students with disabilities. Second, I reject the Department’s contentions that it does not provide “educational” services and that it does not provide direct services to students under twenty-two. The statutes creating the Department of Mental Retardation and enabling its regulations specifically authorize both “educational services” (See e.g. M.G.L. c. 123B.2) and services to “children.” (See e.g. M.G.L. c. 19B.13). Whether this Student has any individual entitlement to Department of Mental Retardation services is a question that can be answered in this forum only upon proper evidence and examination of the Student’s needs and consequent allocation of responsibility.

I find that the Department of Mental Retardation is “involved” with this Student through the provision of respite and case management services. I note that the Department has unique knowledge of this Student as its “involvement” with his family predates the Student’s enrollment at the Greater Lawrence Regional Vocational High School. The Department also has specialized expertise which will assist all the Parties in designing and implementing an appropriate educational program for the Student. I am persuaded that complete consideration of and action on the Student’s request for additional educational and related services cannot be afforded without the full participation of the Department of Mental Retardation.

Therefore, the Motion of the Greater Lawrence Regional Vocational High School to Join the Department of Mental Retardation is GRANTED .

The Parties shall appear for a final prehearing conference on September 28, 1999, at 10:00 a.m. at Malden.

By the Hearing Officer,

____________________

Lindsay Byrne

Date: September 13, 1999


1

The federal special education regulations expressly provide that they are applicable to “all political subdivisions and public agencies in a state that are ‘involved’ in the education of children with disabilities”.

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