COMMONWEALTH OF MASSACHUSETTS
DIVISION OF ADMINISTRATIVE LAW APPEALS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Student & Franklin Public Schools & Massachusetts Department of Developmental Services
BSEA# 25-00429
RULING ON DEPARTMENT OF DEVELOPMENTAL SERVICES
MOTION TO RECONSIDER ITS JOINDER
This matter comes before the Hearing Officer on the January 24, 2025, Motion to Reconsider the Massachusetts Department of Developmental Services Opposition to Franklin Public Schools’ Joinder Motion (Motion). The Motion seeks reconsideration of the January 22, 2025 Ruling on Franklin Public School District’s Motion to Join the Massachusetts Department of Developmental Services (Joinder Ruling)ordering the Department of Developmental Services (DDS) to be joined as a party in this matter. On January 31, 2025, the Franklin Public School District (District) filed an opposition to the Motion entitled Franklin Public Schools’ Response to Department of Developmental Services Motion to Join the (sic) as a Necessary Party (District’s Opposition)[1]. Finally, on February 10, 2025, Parent filed her Opposition to [DDS]’s Motion to Reconsider (Parent’s Opposition)[2].
As none of the parties has requested a hearing on the Motion, and, because neither testimony nor oral argument would advance the Hearing Officer’s understanding of the issues involved, this Ruling is issued without a hearing, pursuant to Bureau of Special Education Appeals Hearing Rule VII(D). For the reasons articulated below, DDS’s Motion is DENIED.
RELEVANT PROCEDURAL HISTORY AND STATEMENT OF FACTS[3]
On February 5, 2025, after issuing the Joinder Ruling, the Parties participated in a Conference Call. During that Call Parent advised that although she had a tour scheduled for an interim day program that day, she had to cancel the same as she did not have any respite services available to support Student while she was away. Parent confirmed that she had already received monies in Flexible Funding from DDS to use towards respite services but advised that she had already utilized the full amount of this funding for other respite related needs associated with Student. DDS explained that while additional respite support was available to Student through the joint DDS/Department of Elementary and Secondary Education (DESE) program (DDS/DESE Program), that program was not yet in place, although progress was being made towards its commencement. Specifically, Parent was scheduled for an orientation meeting with the identified Family Navigation Agency the following day.
After further discussion and questioning by the Hearing Officer, DDS agreed to provide additional Flexible Funding to be used specifically for respite support during any potential placement visits Parent and/or Student will be making. However, DDS was not able to confirm when such funding would be received by Parent[4] for use.
On February 14, 2025, by email, the District advised that Student was scheduled to participate in a virtual observation by a residential program on February 27, 2025, during time that educational staff who work with him are also present. Additionally, the interim day program, whose visit had been cancelled due to the lack of respite support, was seeking to reschedule a visit with both Parent and Student. Finally, another interim day program offered Parent a tour during the week of February 24, 2025. Finally, on February 25, 2025, based on Parent’s representations that she had yet to receive any additional Flexible Funds, DDS was ordered to provide a status report by February 28, 2025, confirming when Parent had or would be receiving such additional funding.
POSITION OF THE PARTIES
- DDS
DDS seeks reconsideration of its joinder in this matter based upon its original argument that “joinder is not necessary for complete relief to be granted and is not warranted under state law, regulations or the facts in this matter”. Additionally, DDS contends that Student is “receiving all of the services they (sic) are entitled to him under his DDS (sic)”. In support of its argument, DDS submitted an “Affidavit of Information and Belief” from the relevant Area Director (Affidavit).
In addition to repeating some of the information and argument contained in DDS’s original opposition to joinder, the Affidavit provides a more detailed history of the DDS services that Student has received since 2009[5]. Further, just as the original opposition indicated, the Affidavit confirms that the DDS/DESE Program services are “in the process of being set-up”. Finally, the Affidavit concludes by claiming that “[Student] is receiving all services that are entitled to him under his DDS eligibility.”
- District
The District also reiterates its original argument for joinder of DDS, claiming that DDS is a necessary party because, although it is not looking to compel DDS to fund a residential educational placement, DDS is “in part, responsible for the developmental / behavioral support services that [Student] requires to receive a free appropriate public education while the District attempts to identify an appropriate residential program.” As Student is currently without another residential educational placement, despite a placement offer by the Evergreen Center in May 2024 that Parent declined, he is being educated on an interim basis at home. The District again asserts that it is “not prepared to or able to coordinate the level of services [Student] requires”. According to the District, DDS “shares responsibility for providing [Student] the supports he requires to receive the full benefit of his IEP services and FAPE at home pending placement at an approved residential setting”. Finally, the District contends that despite DDS’s assertion that Student is already being provided all services he is entitled to, DDS acknowledges that some of the services for which Student is eligible are still pending.
- Parent
Parent seeks to maintain DDS’s status as a party given that DDS “provides critical monetary support to Parent in her pursuit of FAPE for [Student]”. Notwithstanding, Parent continues to assert that the District is fully responsible for providing Student with a FAPE, including providing Student with all special education and related interim home services, which Parent disputes have been provided since Student’s termination from his placement at the Perkins School for the Blind, and the District has not identified an new placement for Student that would provide him with a FAPE[6].
LEGAL STANDARD
- Joinder of a State Agency
As set forth in the Joinder Ruling,Rule I(J) of the Hearing Rules states that,
“Upon written request of a party, a Hearing Officer may allow for the joinder of a party in cases where complete relief cannot be granted among those who are already parties, or if the party 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 its absence. Factors considered in determination of joinder are: the risk of prejudice to the present parties in the absence of the proposed party; the range of alternatives for fashioning relief; the inadequacy of a judgement entered in the proposed party’s absence; and the existence of an alternative forum to resolve the dispute.”
In order for a State agency to be ordered to offer services, the student must be eligible to receive those services from that agency[7]. Under Mass. Gen. Laws c. 71B, § 3:
“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 mental retardation [now the department of developmental services], …, in addition to the program and related services to be provided by the school committee”[8].
The ”in addition to” language within the statute has been consistently interpreted by BSEA Hearing Officers to mean that if services that the human service agency provides in accordance with its rules and policies, are necessary for a student to access or benefit from the school district’s special education program “(over and above those services that are the responsibility of the school district)”, joinder may be appropriate[9].
- Requests for Reconsideration
As a general rule and given that the IDEA provides that due process hearing decisions are “final”[10], motions for reconsideration of BSEA dispositive rulings or decisions are not permitted[11]. Consistent with the requirements of the Administrative Procedure Act, the BSEA notifies parties of this prohibition when such decisions or dispositive rulings are issued by attaching a document entitled Effect of Final BSEA Actions and Rights of Appeal, to all such decisions and substantive rulings, including whenever some or all claims are dismissed “with prejudice” [12].
This, however, does not mean every BSEA ruling is unable to be reconsidered. As here, non-dispositive rulings may be reconsidered on the written request of a party. In such circumstances, the BSEA looks to the Federal Rules of Civil Procedure for guidance. Of relevance, Rule 60, pertaining to Relief from a Judgment or Order, states:
- Corrections Based on Clerical Mistakes; Oversights and Omissions. The court may correct a clerical mistake or a mistake arising from oversight or omission whenever one is found in a judgment, order, or other part of the record. The court may do so on motion or on its own, with or without notice….
- Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time …; (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; … or (6) any other reason that justifies relief”[13].
As the District Court for Massachusetts recognized “… a motion for reconsideration cannot be used as a vehicle to relitigate and/or rehash matters already litigated and decided by the Court. These motions are entertained by Courts if they seek to correct manifest errors of law or fact, present newly discovered evidence, or when there is an intervening change in law”[14].
It is with these statutory and procedural dictates in mind that I consider the Motion.
APPLICATION OF LEGAL STANDARD
DDS relies upon the information contained in the Affidavit as its basis for reconsideration. However, this information does not consist of “newly discovered evidence”, establish clerical mistakes that were overlooked, or set forth any errors of law or fact in the Joinder Ruling[15]. Other than providing greater detail of the DDS services Student has received since 2009 or will receive going forward, the only new allegation in the Affidavit not originally made by DDS, is that Student is “receiving all services that are entitled to him under his DDS eligibility”. As the District noted, though, DDS acknowledges (and continued to confirm at the February 5, 2025 Conference Call) that the DDS/DESE Program services are still “in the process of being set-up”. Moreover, according to Parent, additional Flexible Funding that DDS offered since its joinder, to support respite services needed for Parent and/or Student to tour proposed programs, has yet to be provided.
While I agree with DDS that I am unable to order the agency to provide any services beyond its rules, regulations or policies, as I explained in the Joinder Ruling in this case, and at this stage in the proceedings, DDS’s regulations do not preclude its joinder in this matter. Upon examination of the analysis made in the Joinder Ruling, I do not find there were any errors to warrant reconsideration[16]. The Parties continue to actively search for a new appropriate program for Student, but one has yet to be identified. Thus, even though the District is not seeking to compel DDS to fund residential services for Student, I continue to conclude that it is possible that after a hearing on the merits, I could ultimately determine Student needs additional available DDS services during the ongoing search for an appropriate new placement, as well as on an interim basis[17].
I therefore find that in the unique context of this matter, the factors to be considered for joinder continue to support DDS remaining a party, for both the reasons I stated in the Joinder Ruling, as well as what has transpired since that Ruling[18].
Having reconsidered the requisite factors for joinder, in tandem with DDS’s Motion and the District’s Opposition and Parent’s Opposition, the Motion is hereby DENIED, and DDS remains a party to this matter.
Accordingly, the above-referenced matter will proceed with the Parties, inclusive of DDS, participating in a Conference Call on March 20, 2025 at 9:00 a.m. The Parties are instructed to call the following phone number: 1-(857) 327-9245 at that time and then enter the following passcode when prompted: 133 966 91#.
By the Hearing Officer,
/s/ Marguerite M. Mitchell
Marguerite M. Mitchell
Date: February 26, 2025
[1] Despite its title, the substance of the argument explains it is filed in response to the Motion.
[2] At Parent’s request, on February 6, 2025, I emailed the Parties to allow Parent’s Opposition to be filed late.
[3] Much of the procedural history and relevant factual information was set forth in the Joinder Ruling, which statements are incorporated herein by reference and will not be repeated here. The Parties should refer to the Joinder Ruling as necessary.
[4] Parent is Student’s legal guardian, so she is responsible for all funding Student is eligible to receive.
[5] Specifically, the Affidavit indicates that Student has received Service Coordination from a Children’s Coordinator and then a Transition Coordinator since 2009; Flexible funding allocations since 2020 despite Student attending a residential educational program; Intensive Flexible Family Supports in 2017 as well as presently; and the DDS/DESE Program services consisting of Family Support Navigation hours and funding for both FY25 and FY26, despite not qualifying initially for the program, as “an exception was made to provide [Student] with additional support while he is waiting for a residential placement”.
[6] As explained in the Joinder Ruling, the Parties disagree as to whether the Evergreen Center placement offered to Student would have provided a FAPE. Notwithstanding, it is undisputed that the Evergreen Center filled Student’s seat and is no longer a viable placement option.
[7] In Re: Acton-Boxborough Reg. Sch. Dist., BSEA No. 1703770, 23 MSER 99 (Figueroa, 2017); see M.G.L. c. 71B §3; In Re: Boston Pub. Sch. Dist., BSEA No. 02-4553 (Figueroa, 2002).
[8] MGL c. 71B, s. 3; see 603 CMR 28.08(3).
[9] In Re: Plymouth Pub. Sch. BSEA No. 06-2584, 12 MSER 33 (Crane, 2006) (internal citations omitted); In Re: Fitchburg Pub. Sch. BSEA No. 02-0038, 8 MSER 141 (Byrne, 2002).
[10] 20 USC 1415(i)(1)(A) (“A decision made in a hearing conducted pursuant to subsection (f) or (k) shall be final, except that any party involved in such hearing may appeal such decision under the provisions of [20 USC 1415] subsection (g) and paragraph (2)”); 34 CFR 300.514(a) (“A decision made in a hearing conducted pursuant to [34 CFR] §§300.507 through 300.513 or §§300.530 through 300.534 is final …”); see M.G.L. c. 30A §14 (“… any person or appointing authority aggrieved by a final decision of any agency in an adjudicatory proceeding, whether such decision is affirmative or negative in form, shall be entitled to a judicial review thereof”).
[11] Hearing Rule XII(B) providing that the decision of a BSEA Hearing Officer is “the final decision of the BSEA and is not subject to further agency review. Motions to reconsider … are not permitted” (emphasis added).
[12] M.G.L. c 30A §11(8). Also note that the “Scope of Rules” section of the BSEA Hearing Rules, the BSEA Hearing Rules are “governed by 603 CMR 28.00, federal due process procedures and the Massachusetts Administrative Procedure Act, M.G.L. c. 30A”.
[13] Fed.R.Civ.P. 60.
[14] Villanueva-Mendez v. Nieves Vazquez, 360 F.Supp.2d 320, 323 (D. Mass. 2005) (internal citations omitted).
[15] Fed.R.Civ.P. 60; see Villanueva-Mendez, 360 F.Supp.2d at 323.
[16] Id.
[17] Besides additional Flexible Funding, respite services or other supports to assist Parent and/or Student in touring and transitioning to new programs, or to assist Student’s interim needs, as I previously noted, DDS’s regulations also provide for a redetermination of eligibility and prioritization “… after one year has passed since the most recent determination and the individual’s circumstances have changed” (115 CMR 16.08); or “Emergency Provision of Supports” with the consent of a parent when “there is reason to believe that a person … is eligible for Children’s Supports [and] if the absence of supports creates a serious or immediate threat to the health or safety of the person or others” (115 CMR 6.09).
[18] Further, a hearing on the merits will confirm if Student is actually receiving all available DDS services, even on an interim basis, that are necessary for him to access or benefit from the District’s special education program, and are “over and above those services that are the responsibility of the school district”. It is also possible that until a hearing on the merits occurs, Student could become eligible for but not timely receive additional services (such as the pending additional Flexible Funding), or some Student is eligible for could end or be disrupted, at no fault of Student or Parent, thereby justifying pre-hearing orders.