COMMONWEALTH OF MASSACHUSETTS
DIVISION OF ADMINISTRATIVE LAW APPEALS
Bureau of Special Education Appeals
In Re: Student v. Pittsfield Public Schools
BSEA # 24-04733
RULING ON MOTION OF PITTSFIELD PUBLIC SCHOOLS TO JOIN THE DEPARTMENT OF CHILDREN AND FAMILIES AS A NECESSARY PARTY
This matter comes before the BSEA on a Motion of Pittsfield Public Schools to Join the Department of Children and Families as a Necessary Party. (“Motion”), filed on December 11, 2023. The following background information is gleaned from the parties’ submissions and additional representations by counsel and is adopted for purposes of ruling on this Motion only.
Student is a thirteen-year-old child with diagnoses of autism spectrum disorder (ASD) and an intellectual disability. Student is non-speaking, and uses a Proloquo To Go device to communicate. Student has a long history of self-injurious and aggressive behavior that has led to several hospitalizations. As of the date this hearing request was filed (November 16, 2023), Student was hospitalized in a medical center, awaiting a bed in a children’s psychiatric unit.
Student’s current educational placement is a substantially separate classroom within a middle school in Pittsfield, Massachusetts, where he is supported by a 1:1 aide. Additionally, he receives home-based ABA services from a private agency, personal care attendant (PCA) services funded by Mass. Health, and additional home support funded by the Department of Elementary and Secondary Education (DESE)/Department of Developmental Services (DDS) grant program. The Department of Children and Families (DCF) has an open “clinical” case with Student’s family and may provide some home-based supports, but neither has, nor is seeking custody of Student. The full nature and extent of DCF’s involvement is unclear.
Despite school and home-based services, Student’s behaviors have escalated over the past year, both in school and at home. Student’s most recent behavioral incidents at school and at home led to his current hospitalization. After a Team meeting in June 2023, Pittsfield sent referrals to two private, special education day schools. One school has not responded to the referral. The second school would accept Student, but the travel time would be prohibitive in light of Student’s behavioral issues during transportation. After a second, emergency meeting held in October 2023, at Parent’s request, Pittsfield agreed to send referral packets “for informational purposes only” to private residential educational programs: Devereux, the Guild School, and the May Center. As of December 1, 2023, none of these programs has responded, although the May Center has informally indicated that it might be able to accept Student.
On November 16, 2023, Parent filed the above-referenced hearing request alleging that Student’s current IEP and placement do not provide him with a free, appropriate public education (FAPE), and that Student requires placement in a special education residential school to receive FAPE in the least restrictive environment (LRE).[1] Pittsfield responded on December 1, 2023, stating that it would be willing to cost-share a residential placement with DCF, but that to date, it has received no expert recommendations for residential placement, and, as such, the District maintains that Student could receive FAPE in a private day school.
On December 11, 2023, Pittsfield filed the above-referenced Motion to join DCF as a necessary party, arguing that “the services available through DCF are relevant to the issue of whether or not the Student is able to access the less restrictive environment of a day placement.” Specifically, Pittsfield asserts that home-based services from DCF—which does not have custody of Student but “does have an open case with the family”–might enable Student to benefit from such day placement. Further, Pittsfield notes that “it is possible” for DCF to place Student out of the home for up to six months under a Voluntary Placement Agreement (VPA), thereby providing “another level of support” for Student’s educational program.
DCF filed an Opposition to the District’s Motion on December 19, 2023. In sum, DCF argues that it is not “so deeply involved with Student that the possibility of its responsibility for services ‘in addition to’ educational services is substantial and not merely speculative.” Opposition, quoting In Re: Lawrence Public Schools, BSEA No. 08-2804 (2007). As such, the fact that at some point in the future, DCF might offer home-based services that are different from the services that Student already receives through other providers when he is not hospitalized, or that DCF and Parent could mutually agree to execute a VPA for a 6-month residential placement is an insufficient basis for joinder. Parent has not filed a response to Pittsfield’s Motion.
DISCUSSION
Pursuant to M.G.L. c. 71B, §3 the BSEA may order human service agencies to provide certain services to the child who is the subject of the hearing, as follows:
The hearing officer may determine, in accordance with the rules, regulations and policies of the respective agencies, that services shall be provided by the [human service agencies including DCF] or any other state agency or program in addition to the program and related services to be provided by the school committee. Id. (Emphasis supplied).
As such, a hearing officer may order such services from a human services agency,
…but only if such additional services may be necessary to ensure that the student will be able to access or benefit from the school district’s special education program and services. The “in addition to” language means that if a student’s needs can be met through the school district’s special education and related services which are the responsibility of the school district, complete relief can be granted complete relief can be granted without the need for the human services agency to become a party…
See: In Re Student v. American School for the Deaf (ASD), Ruling on ASD’s Motion to Dismiss, and in the Alternative Motion to Join, BSEA No. 2405677 (Kantor Nir, 2023), citing In Re: Arlington Public Schools (Amended Ruling to Join DCF and DDS), BSEA # 1309210 (Crane, 2013). (Emphasis supplied).
The implementing regulation provides that “the jurisdiction of the [BSEA] over state agencies…shall be exercised in accordance with the rules, regulations and policies of the respective agencies…” 603 CMR 28.08(3). In other words, the BSEA may order the agency to provide services that are (a) among those that the agency’s own regulations authorize or require it to provide for the student at issue, and, (b) necessary to enable the student to benefit from the free, appropriate public education (i.e., special education and related services) already required of and provided by the school district.
In order to exercise jurisdiction over the state agency, and potentially order the agency to provide services to the child, the BSEA must first join the agency as a party to the hearing. Rule I.J of the Massachusetts Hearing Rules for Special Education Appeals (BSEA Hearing Rules) allows a BSEA hearing officer to join a person or entity as a party:
…where 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 [such that]…the case cannot be disposed of in their absence. Factors in determining whether joinder is appropriate are: the risks of prejudice to the present parties; 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 issues. Id.
Among the factors that hearing officers consider in determining whether the criteria of 603 CMR 28.08(3) and Rule I.J have been met are the following:
- the student’s eligibility for services from the agency;
- status as a current client of the agency;
- length and degree of involvement that the agency already has with the student, if any;
- likelihood that an order to the school district(s) alone will provide the student with FAPE, that is, whether FAPE can be “developed, delivered, declared or guaranteed without the participation of the state agency sought to be joined.” In Re Auburn Public Schools, BSEA No. 020983 (Byrne, 2002);
- administrative efficiency of joining a potentially responsible state agency early in the proceeding.
Based on the relevant law as applied to the facts asserted by the parties, Pittsfield’s Motion to join DCF as a party in this matter must be DENIED because the criteria for joinder have not been met. Specifically, while Student and/or his family have an open “clinical” case with the agency, the parties have provided no information as to whether the clinical case has any relationship to Student’s educational needs.[2] Similarly, the record to date does not indicate the “length and degree of involvement” that DCF has with Student in particular, if any.
Further, as DCF points out in its Opposition to joinder, Pittsfield has not made even a preliminary showing that DCF could be found responsible, at a hearing, for providing a service or services to Student. See In Re: Gateway Public Schools, BSEA No. 128482. (Figueroa, 2012) The District does not elaborate on its assertion that because DCF has an open case with the family it “would presumably be prepared to offer home based services once the Student is home,” on what those services might be, or how they might differ from the home-based services that Student already has been receiving from outside providers, or that could also be provided by the District pursuant to an IEP. Similarly, with respect to residential placement, Pittsfield argues that although Student is currently ineligible for such services because he is not in DCF care or custody,[3] it is possible that Parent could enter a voluntary placement agreement with DCF in the future. Both of these scenarios—that DCF could offer as-yet undefined in-home services or that Parent and DCF could voluntarily agree to out-of-home placement—are theoretically possible, but speculative, and the BSEA has historically declined to join human service agencies under such circumstances. See: In Re: Natick Public Schools, BSEA No. 1611011 (Berman, 2016); In Re: Lawrence Public Schools, BSEA No. 082804 (2007).
Lastly, there is no indication at this juncture that complete relief could not be granted without DCF as a party. Parent’s hearing request alleges that Student requires a residential placement for educational reasons, but also asserts, “without compromising this claim,” that student requires residential placement if a day school cannot be located that is within reasonable commuting distance. If Parent meets her burden of proof on either claim, the BSEA can grant the relief sought without the need to join DCF. Specifically, if Parent proves that Student needs residential placement for educational reasons, the BSEA can order the District to provide such placement. Alternatively, the BSEA could order Pittsfield to fund a residential placement if necessary to enable Student to access an appropriate program that is not a reasonable distance from his home. See, for example, In Re: Swansea Public Schools, BSEA No. 2207178 (Berman, 2022), citing In Re: Jed & Westport Public Schools, BSEA No. 1302922 (Oliver, 2013) and In Re Quincy Public Schools, BSEA No. 1307468 (Crane, 2013).
CONCLUSION AND ORDER
Based on the foregoing, I conclude that the criteria for joinder of DCF as a party in this matter have not been met. Because DCF does not have Student in its care or custody, pertinent statute and regulations preclude it from funding an out-of-home placement, and MGL c. 71B, §3 prohibits a hearing officer from ordering such placement. Although DCF has an unspecified relationship of some kind to Student’s family, it is not “so deeply involved with Student that the possibility of its responsibility for services ‘in addition to’ educational services is substantial and not merely speculative.” In Re: North Middlesex Regional School District and DCF, BSEA No. 1612096. (Figueroa, 2016). Lastly, there is no basis to conclude that complete relief, including, but not limited to, residential placement and/or additional home-based services, could not be granted without DCF’s participation as a party. See In Re: Gateway Public Schools, supra.
The Motion of the Pittsfield Public Schools to join DCF as a Party is DENIED.
By the Hearing Officer,
___________________________
Sara Berman
Dated: January 12, 2024
[1] In her hearing request, Parent asserts that Student needs a residential placement for educational reasons, but, “without compromising that claim, Parent is preserving a claim that residential placement is required if [Student] is not admitted to an appropriate private day school within a reasonable distance from the family home.”
[2] Indeed, the parties’ and DCF’s submissions do not indicate whether DCF’s involvement is related to Student’s needs or those of other family member(s).
[3] DCF must acquire care or custody of a child in order to provide an out-of-home placement, either via a court order or voluntary agreement. See M.G.L. c. 119, §23(a); 110 CMR 4.02, et seq. As such, a hearing officer may not order DCF to provide such placement to a child not in its custody because such order would not be “in accordance with the rules, regulations, or policies” of the agency, contrary to the requirements of MGL c. 71B, §3.