COMMONWEALTH OF MASSACHUSETTS
DIVISION OF ADMINISTRATIVE LAW APPEALS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Student & Old Rochester Regional School District
BSEA #25-02367
& Massachusetts Department of Mental Health (DMH)
RULING ON OLD ROCHESTER REGIONAL SCHOOL DISTRICT’S
MOTION TO JOIN THE MASSACHUSETTS DEPARTMENT OF MENTAL HEALTH
This matter comes before the Hearing Officer on the Old Rochester Regional School District’s (District) Motion to Join the Massachusetts Department of Mental Health (Motion), filed with the BSEA on August 26, 2024. The District seeks joinder of the Massachusetts Department of Mental Health (DMH) as a necessary party in accordance with Rule I(J) of the Bureau of Special Education Appeals (BSEA) Hearing Rules for Special Education Appeals (Hearing Rules), claiming complete relief cannot be granted in its absence. Specifically, the District contends that residential placement is not appropriate and overly restrictive for Student. As such, to the extent it is determined that Student requires residential or other non-educational clinical services to meet his therapeutic needs and maintain stability in order to access his educational program, such need is not for educational purposes, and DMH should provide these services. Thus, DMH must be joined as a necessary party to ensure that there is “a full adjudication of [Student’s] rights to educational and related services provided in Massachusetts by educational and human service agencies”.
For the reasons articulated below, the District’s Motion is ALLOWED and DMH is joined as a necessary party in this matter.
RELEVANT PROCEDURAL HISTORY
On August 20, 2024, Parent filed an Accelerated Hearing Request (Hearing Request) in this matter due to Student’s increasingly aggressive and unsafe behaviors, resulting in multiple hospitalizations that are likely to continue without intervention. The BSEA was asked to determine if: (1) the District denied Student a FAPE by failing to provide Student with an IEP that is reasonably calculated to confer meaningful educational benefit, and by failing to timely re-evaluate Student; (2) Student’s current placement at a therapeutic day school is appropriate for him and if not whether Student requires a therapeutic residential school to receive a FAPE; and (3) the District should provide Student compensatory services for the periods he has been denied a FAPE.
On the same date, the District filed an Opposition to Student’s Request for Accelerated Status, advising that Student has been attending and making effective progress at, and continues to be provided with, a therapeutic day program at the Southeastern Massachusetts Educational Collaborative (SMEC), in accordance with his IEP. The District submitted that the Hearing Request does not meet the criteria for accelerated status and should proceed on the normal track.
On August 21, 2024, the BSEA denied the request for accelerated status and issued a Notice of Hearing in this matter. An initial Hearing date was set for September 24, 2024.
On August 26, 2024, the District filed its Motion, arguing that Student has been successfully accessing his educational program at the public day school placement he has been attending for years, with DMH providing support to Student and his family at home, and more recently with additional District-provided home services. Student has continued to access and make educational progress at his day program even though, since April 2024, he has been placed, for clinical reasons, in DMH programs that provide round-the-clock clinical care, including at DMH’s Southeast, Short-Term Assessment, Intervention and Life Skills (SAILS) program, as well as at Camp Wediko. According to the District, these placements ended recently with Student returning home, due solely to DMH being unable to locate another comparable program for Student after Camp Wediko ended, despite Student continuing to meet clinical criteria for this level of care from DMH.
On September 5, 2024, Parent filed Parent’s Response to District’s Motion to Join [DMH], advising that Parent does not oppose the District’s Motion, but seeking to clarify inaccurate information in the Motion and maintaining that Parent contends that her Hearing Request involves Student’s educational needs that are the District’s responsibility to address. Parent provided clarification as to what information the District was aware of relating to Student’s clinical placements and needs since April 2024 through the date of filing the Hearing Request and asserted that the reason for DMH’s decision to seek residential supports for Student was due to the District’s failure to consider recommendations for residential educational programs.
Also, on September 5, 2024, a Conference Call was held at Parent’s request to further discuss the request for an accelerated hearing. During this Call, the Parties advised that Student had been re-admitted to the hospital the day before due to a crisis that presented at his day school program. They also discussed that Student’s 3-year reevaluations had been completed and the Parties were in the process of scheduling a Team meeting to discuss the same. DMH also stated its intention to continue providing services and supports for Student. Further, the Parties advised that they jointly sought to participate in a Pre-Hearing Conference to explore potential resolutions. Thus, they jointly requested to postpone the original Hearing date, which request was granted for good cause, and the Hearing has been rescheduled to October 3 and 8, 2024.
Finally, on September 9, 2024, DMH advised in writing that it has chosen not to oppose the Motion.
FACTS[1]
- Student is 13 years old and has been diagnosed with ADHD, Disruptive Mood Disorder, and a mild Intellectual Impairment. Student’s eligibility for special education services and support under the disability categories of Emotional and Health are not in dispute. Student is currently placed at SMEC’s Therapeutic Learning Center program, which program he has attended since November 2021, most recently pursuant to an IEP dated May 30, 2023 to May 29, 2024 that was fully accepted by Parent. (Hearing Request; District Memorandum in Support of Motion).
- On February 9, 2024, Student was hospitalized at Fuller Hospital (Fuller) as a result of an aggressive and threatening incident towards his family at home. Fuller staff attempted to conduct a neuropsychological evaluation of Student, but he refused all evaluation attempts. (Hearing Request; District Memorandum in Support of Motion; Parent Response to Motion).
- On March 5, 2024, a treatment meeting was held with DMH providers, Fuller clinicians, and SMEC to discuss his progress. Student’s team at Fuller and DMH providers recommended a residential placement for Student, while the team at SMEC disagreed indicating that Student did not exhibit the reported intensity of behaviors while at school, was emotionally stable at the SMEC program, and was making effective progress there. (Hearing Request).
- Due to ongoing concerns with home safety, on April 11, 2024, Student was discharged from Fuller to SAILS to undergo a 45-day clinical assessment. SAILS is a DMH therapeutic group care service with 24-hour clinical support. While at SAILS, Student was evaluated by several crisis teams and was admitted for inpatient hospitalization on multiple occasions due to unsafe, aggressive, and dysregulated behavior that SAILS was not otherwise equipped to handle. (Hearing Request; Motion; Parent Response to Motion).
- On May 20, 2024, Student was hospitalized at South Coast Behavioral Hospital (SCBH), where he remained until July 5, 2024. (Hearing Request).
- On June 6, 2024, Student’s district-funded home services provided by Pilgrim Area Collaborative Extended Services (“PACES”) were indefinitely paused due to the aggressive behaviors Student exhibited during home visits, particularly during a home visit on May 20, 2024[2]. (Hearing Request; District Memorandum in Support of Motion; District Opposition to Hearing Request).
- On July 5, 2024, Student was discharged from SCBH to Camp Wediko. Camp Wediko is a six week therapeutic residential summer camp for adolescents who have social, emotional, and behavioral challenges. Due to multiple aggressive, destructive, and unsafe behaviors, Camp Wediko asked Parent to remove Student from July 31, 2024, to August 3, 2024, for a “reset.” Parent stayed with Student in a hotel during this reset period due to safety concerns she had with bringing Student home. Student returned to Camp Wediko after this time. (Hearing Request; District Memorandum in Support of Motion).
- Student’s final day of Camp Wediko was on August 14, 2024. Although DMH attempted to find another residential clinical program for Student, they were unable to do so at this time and he returned home with DMH supports, only. Student was ineligible to return to SAILS as a result of an incident that involved Student allegedly assaulting another resident. Additionally, Student was denied admission to any CBAT programs. (Hearing Request).
- As noted previously, on September 4, 2024, Student was readmitted to SCBH due to an incident that occurred while he was attending SMEC.
LEGAL STANDARD
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.”
To properly analyze a joinder request, I must also consider the state and federal laws that establish the limited jurisdictional authority of the BSEA. Specifically, 20 USC §1415(b)(6), grants parties the right to file timely complaints with the state educational agency designated to hear such “with respect to any matter relating to the identification, evaluation or educational placement of the child, or the provision of a free appropriate public education to such child”. Similarly, M.G.L. c. 71B §2A establishing the BSEA, authorizes it to resolve special education disputes,
“… between and among parents, school districts, private schools and state agencies concerning: (i) any matter relating to the identification, evaluation, education program or educational placement of a child with a disability or the provision of a free and appropriate public education to the child arising under this chapter and regulations promulgated hereunder or under the Individuals with Disabilities Education Act, 20 U.S.C. section 1400 et seq., and its regulations; or (ii) a student’s rights under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. section 794, and its regulations” (emphasis added).
Even if a state agency is joined, a Hearing Officer may only order services consistent with the rules, regulations, and policies governing that state agency, and may only order services that fall within the array of services provided by that particular agency, pursuant to the provision of 603 CMR 28.08(3) Moreover, in order for the Hearing Officer to order the State agency to offer services, the student must be eligible to receive those services from that state agency. In Re: Acton-Boxborough Regional School District, BSEA No. 1703770, 23 MSER 99 (Figueroa, 2017); see M.G.L. c. 71B §3; In Re: Boston Public School District, BSEA No. 02-4533 (Figueroa, 2002).
With these statutory and procedural dictates in mind, I turn to consider the District’s Motion.
APPLICATION OF LEGAL STANDARD
The District is requesting the joinder of a state agency, DMH, in a matter involving a dispute over whether Student requires a residential placement to receive a FAPE, a request and dispute that clearly fall within the jurisdictional authority of the BSEA pursuant to M.G.L. c. 71B §2A. Although DMH and the District dispute the reasons Student may require a residential setting, DMH does not contest that it is a necessary party to this matter. Further, DMH has acknowledged its intention to continue providing services to Student. Therefore, I find that all the factors to be considered for joinder support joining DMH as a party in this case[3].
Joinder of DMH in this matter is essential to reduce the risk of prejudice and to ensure that all possible options for appropriate relief are available, allowing for fair judgment to be made. Having DMH as a party enables options for relief that are not possible without its involvement. Specifically, if, after a hearing on the merits, I determine that Student needs additional non-academic supports, up to and including residential intervention, to access a FAPE, I would not be able to order comprehensive relief without the participation of DMH[4]. Finally, it is undisputed that the BSEA is not only the appropriate forum but the only forum, to resolve the disputes at issue in this matter[5].
Having considered the requisite factors for joinder, in tandem with DMH’s response not opposing the District’s Motion, the District’s Motion is hereby ALLOWED, and DMH is ordered to be joined as a party to this matter.
Accordingly, the above-referenced matter will proceed with the Parent, District, and DMH in accordance with my September 11, 2024 Ruling on Assented-To Motion to Postpone Hearing.
By the Hearing Officer[6],
/s/ Marguerite M. Mitchell
Marguerite M. Mitchell
Date: September 16, 2024
[1] The facts stated herein are considered to be true solely for the purposes of this Ruling.
[2] PACES first provided Student with home services in December 2023.
[3] See In Re: Plymouth PS, BSEA No. 06-2584, 12 MSER 33 (2006) (Ruling, Crane) (Joining DMH in that matter, and reasoning that “[i]n the instant dispute, however, the apparent severity of Student’s mental health needs, the current involvement and expertise of DMH, the likely usefulness of DMH’s participation in the Hearing regarding my determination of Student’s needs and how they should be met, and the importance of resolving Plymouth’s and DMH’s responsibilities to Student as quickly as possible all argue in favor of a single BSEA hearing with DMH as a party.”)
[4] I am mindful that any such order of additional supports by DMH must be in accordance with its agency’s rules, regulations or policies. See In Re: Quabbin Regional School District and [DMH] and Dept. of Developmental Services, BSEA No. 2211285, 28 MSER 189 (2002) (Ruling, Mitchell) (setting forth DMH Policy 19-02 that provides in relevant part: “…DMH service authorization is guided by the principle of providing services at the most appropriate level of care in the least restrictive environment in order to enable the youth served to live in their community of choice. Residential intervention is viewed as a last resort and is used only when a DMH service-authorized youth cannot safely manage in the youth’s home environment as a result of behaviors related to the youth’s serious emotional disturbance (SED) or serious mental illness (SMH). Residential intervention, like all clinical services, is intended to be for the shortest period of time necessary to restore the youth to a level of functioning that permits the youth to live in a less restrictive environment.… Some DMH authorized youth require more intensive clinical or educational services and are unable to access those services unless they are delivered in highly structured environments providing 24/7 integrated daily care. These settings include: … Residential school placements generally funded as part of the youth’s entitlement to special education and related services. DMH will not fund residential placements in 24/7 residential schools when it is determined that the youth needs such a service to make educational progress, which includes the generalization of skills necessary for safe community living. For DMH service authorized youth who require such placements, DMH may be involved to provide ancillary services within its service system as clinically indicated and will assist the youth in transitioning back to a community based setting as soon as possible. DMH will fund the residential portion of a 24/7 residential school placement in extraordinary circumstances…. These short-term authorizations will be funded only with an emergency exception-based approval, intended to bridge the period of time until the LEA funding source is secured or an opening in a less restrictive setting is available.”) (Emphasis added in Ruling).
[5] 20 USC §1415(b)(6); M.G.L. c. 71 § 2A; see 34 CFR 300.507(a)(1); 603 CMR 28.08(3)(a), providing for the BSEA to hear “… any matter concerning the eligibility, evaluation, placement, IEP, provision of special education in accordance with state and federal law or the procedural protections of state and federal law for students with disabilities.”; see 34 CFR 300.507(a)(1); 603 CMR 28.08(3)(a).
[6] I gratefully acknowledge the assistance of BSEA legal Intern, Sophie Rudloff, in issuing this Ruling.