COMMONWEALTH OF MASSACHUSETTS
DIVISION OF ADMINISTRATIVE LAW APPEALS
BUREAU OF SPECIAL EDUCATION APPEALS
In Re: Student v. Southbridge Public Schools & Department of Mental Health (DMH)
BSEA # 25-02501
CORRECTED[1] RULING ON DEPARTMENT OF MENTAL HEALTH’S MOTION TO DISMISS
FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED
This matter comes before the Hearing Officer on the August 29, 2024 Department of Mental Health’s Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted (Motion). In it, the Department of Mental Health (DMH) argues that DMH must be dismissed as a party as it is not a necessary party in the above-entitled action. Specifically, DMH states that the primary issue before the hearing officer is whether the Student currently requires a residential education placement in order to access a Free, Appropriate Public Education (FAPE). As DMH policy is to serve clients in the least restrictive setting necessary for their treatment, residential intervention is taken only as a last resort, and only on a short-term basis. As such, the BSEA would be prohibited under G.L. c. 71B Section 3 from ordering DMH to provide this relief. Additionally, Student is currently receiving DMH services in an Intensive Residential Treatment Program with no pending discharge date, and therefore, DMH is not recommending any particular step down setting at this time. Accordingly, DMH currently has no interest in this special education litigation, and is not able to provide the relief sought in the Request for Hearing.
On September 4, 2021, Southbridge Public Schools (Southbridge or the District) filed The Southbridge Public Schools’ Opposition To The Department Of Mental Health’s Motion To Dismiss (Opposition)[2] asserting, in part, that
“It is the position of the Southbridge Public Schools that the Student’s mental health treatment needs are segregable from her educational needs and that, to the extent that the Student requires continued residential services and/or placement either for purposes of mental health treatment or due to an inadequate home environment, said residential services would be in addition to the appropriate educational services that have been, and continue to be, proposed by the District and would be the responsibility of the Department of Mental Health as the Student’s primary human service agency.”
On September 5, 2024, Parents filed Parents’/Student’s Response To Department Of Mental Health’s Motion To Dismiss, asserting, in part that “[c]ontrary to DMH’s argued contention in their filed Motion, … DMH policy affirmatively does afford funding for therapeutic residential educational placements” although the policy fails to “provide defined criteria for all the instances of what constitutes ‘extraordinary circumstances’, how ‘emergency exception-based approval’ is sought, and what the parameters and criteria are around its policy provision that affirmatively provides ‘short term’ funding ‘intended to bridge the period of time until the LEA funding source is secured or an opening in a less restrictive setting is available.’” In addition, according to Parents, “there is a rebuttable presumption that the policy long-ago expired, absent evidence that the policy was renewed beyond the one-year anniversary of its 10/30/19 issuance.”
The parties did not request a hearing on the Motion, and I find that a hearing is not needed because it would not likely advance my understanding of the issues.[3]
For the reasons set forth below, DMH’s Motion is hereby DENIED.
FACTUAL BACKGROUND AND RELEVANT PROCEDURAL HISTORY[4]
- Student is a 6th grade resident of Southbridge, Massachusetts. Student is diagnosed with Autism Spectrum Disorder (“ASD”), disruptive mood dysregulation disorder (“DMDD”), reactive attachment disorder (“RAD”), post-traumatic stress disorder (“PTSD”), and attention deficit hyperactivity disorder (“ADHD”). She is eligible for special education and related services.
- At both school and home, Student exhibits frequent maladaptive, aggressive, and unsafe behaviors.
- In May 2023, Student was admitted to the hospital for mental health/psychiatric reasons.
- Student was initially screened for DMH services in August, 2023 and began receiving Home Based Therapeutic Care (IHTBC).
- Student was admitted to an Intensive Residential Treatment Program (IRTP) on September 26, 2023.
- In April of 2024, staff discussed discharging Student, but when new peers were admitted to the IRTP, Student’s behavior declined and clinical staff determined that this was no longer an appropriate time for discharge.
- Also in April 2024, the District proposed an IEP and placement in the District’s in-district substantially separate program.
- Student has been unable to tolerate home visits for longer than 2-3 hours at a time. She becomes dysregulated and has to return to her IRTP.
- On August 26, 2024, Parent filed a Hearing Request alleging, in part, that Student’s in-District program is inappropriate. Specifically, Parent contends that if “Student were to be discharged from her DMH IRTP placement back to home with a day placement, Parents have no doubt that she would immediately crash and burn, and [sic] right back in the hospital, and be yo-yo’ed between emergency rooms and psychiatric hospitals once more, creating an extremely destabilizing environment for the Student.” In addition, according to Parent, “DMH’s IRTP was prepared to begin discharge planning for the Student in 4/2024, without objective metrics, goals, benchmarks, safety planning, behavior intervention planning, etc. To date, DMH has still not clearly outlined a discharge plan or well-defined discharge goals for the Student, making it impossible for the District to have genuinely determined that the Student’s least restrictive placement is an in-district program.”
- Parents requested[5] a BSEA decision finding that:
- the District failed to timely and appropriately conduct a Functional Behavioral Assessment (“FBA”);
- the District’s historic/proposed in-district placement has not been and is not reasonably calculated to provide the reconvene to develop and propose an IEP and placement that is reasonably calculated to provide the Student a FAPE [sic];
- the record does not support that the Student’s placement needs are anything less than a residential setting, and the District’s offering of an in-district placement is not supported by the record;
- the District must conduct an immediate functional behavioral assessment and safety assessment based on the maladaptive behaviors set forth in the record (including but not limited to those outlined herein);
- the District must write a behavior intervention plan and safety plan based on the FBA safety assessment;
- the District must convene a Team Meeting to develop and propose a residential IEP that is reasonably calculated to address the needs of the Student;
- the District and/or DMH are required to fund/cost-share the funding of a residential therapeutic educational placement for the student.
- According to DMH, at this time, DMH has not determined that the Student no longer meets clinical criteria for residential treatment, has not developed a current discharge plan for the Student from her current residential treatment program, and is not proposing the Student’s discharge from her current DMH residential treatment program.
LEGAL STANDARDS
1. Joinder
Rule 1(J) of the Hearing Rules for Special Education Appeals (Hearing Rules) allows a Hearing Officer to join a party upon written request, in cases 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 and is so situated that the case cannot be disposed of in their absence.” This Rule lists the following factors to be considered in determining whether a person or entity should be joined: “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 judgment entered in the proposed party’s absence; and the existence of an alternative forum to resolve the issues.”[6] In the instant case, in order to determine whether these criteria are met, the Hearing Officer must also consider the statutory language regarding the jurisdiction of a BSEA Hearing Officer over state agencies.
2. BSEA Jurisdiction Over State Agencies
The extent to which the BSEA may order services to be provided by another state agency is set forth in Mass. Gen. Laws ch. 71B, § 3, which provides:
“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 children and families, the department of mental retardation [now the department of developmental services], the department of mental health, the department of public health, or any other state agency or program, in addition to the program and related services to be provided by the school committee.”[7]
Hence, although it is a school district’s responsibility to provide a student with a FAPE, the BSEA may order a state agency to provide services in addition to those that are the responsibility of the school district if the services are found to be necessary to ensure that the student is able to access or benefit from the special education program and services offered by the school district.[8] As explained by Hearing Officer William Crane in In Re: Plymouth Public Schools (Ruling), BSEA # 06-2584, the “in addition to” language within M.G.L. c. 71B, § 3 has been interpreted by BSEA Hearing Officers to mean that if a student’s needs can be met through the special education and related services which are the responsibility of the school district, complete relief can be granted without the need for the human service agency to become a party and joinder is not warranted, at least for the purpose of requiring the agency to provide services. This maintains the school district as the entity with sole responsibility for all those services to which the student is entitled pursuant to state and federal special education law. On the other hand, if additional services from a human services agency (over and above those services that are the responsibility of the school district) 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, then joinder of the state agency may be appropriate.[9]
Therefore, in order to join a state agency, “the moving party must be able to show, at least in a preliminary way, that it will be able to present evidence at a Hearing that may result in the entity being found responsible to offer some service … to the student.”[10]
The above-discussed standards for joinder of state agencies are equally applicable to matters, such as the instant case, in which a party has been named ab initio when a hearing request is filed, and that party seeks to be dismissed from the case.
3. Department of Mental Health (DMH)
DMH is a state agency falling squarely within the grant of authority conferred to the BSEA under the aforementioned regulations. A “BSEA Hearing Officer may require DMH to provide additional services but only in accordance with the DMH rules, regulations, and policies.”[11] When an agency has found a client eligible for services, the BSEA may order the provision of specific services, even if the agency originally exercised its discretion to withhold them.[12] On October 30, 2019, DMH offered guidance and clarification on the implementation of DMH’s service authorization regulations, 104 CMR 29.00, with respect to provision of residential intervention for children, youth and young adults (“2019 Guidance”). Specifically, the 2019 Guidance indicated as follows:
“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; typically in cases where the youth could function in a less restrictive community setting, but where there are no appropriate openings within DMH’s group care system. DMH will authorize and fund this service on a short-term basis only.”[13]
APPLICATION OF LEGAL STANDARDS AND CONCLUSION
In order to decide whether DMH is a necessary party in this matter, I must first determine whether complete relief may be granted in its absence, or if DMH 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.[14] If so, I must then determine whether DMH may be a party to the dispute in accordance with the agency’s rules, regulations, and policies.[15] Here, based on the facts recited above and the applicable legal standards, I find that DMH is a necessary party in this proceeding.
It is not disputed that pursuant to its own rules, regulations and policies relative to providing services for children with a serious emotional disturbance, Student has been eligible to receive DMH services since August 2023 when she began receiving Home Based Therapeutic Care (IHTBC). Student was admitted to an Intensive Residential Treatment Program (IRTP) on September 26, 2023 where she remains to date. Parents now seek a residential school placement for Student. The District has proposed an in-District substantially separate classroom for Student and disputes that it is responsible to fund a residential placement.
DMH argues that in this case, to the extent Parents seek relief from DMH, it is limited to “the District and/or DMH are required to fund/cost-share the funding of a residential theraputic [sic] educational placement for the student.” This would be “a long term placement. i.e., either an academic or calendar year,” which, under DMH Policy
#19-02, is allowed on “a short-term basis only.” Moreover, DMH Policy #19-02 prohibits the BSEA from ordering DMH to cost-share for the residential component of a residential school placement lasting an entire academic or calendar year, or to provide other residential intervention on a long-term basis. Additionally, DMH argues that it has no interest or legal standing in the primary issue before the BSEA in this case (i.e., whether a residential school placement is needed for the Student to receive educational benefit), as it is not within the mandate and expertise of DMH to provide special education services and accompanying related services to DMH clients. In opposition, the District asserts that, “Due to the Student’s lengthy and still ongoing residential placement by DMH in a DMH supported residential treatment program; the Student’s current eligibility for, and receipt of, DMH residential services; and DMH’s ongoing involvement and oversight of the Student’s mental health treatment; it is likely that the Hearing Officer will be unable to grant complete relief with only the District and Parent as parties. As DMH has provided and funded the Student’s residential programming for the past twelve (12) months, and as DMH is also the current provider of therapeutic and case management services to the Student, there is ample evidence that DMH has an interest relating to the subject matter of this case, and that DMH is so situated that this case cannot be disposed of in its absence.” Parents assert that Student’s circumstances may constitute “extraordinary circumstances” under the Policy and fall within the “emergency exception”. Moreover, they assert that the Policy is outdated.[16]
I find DMH’s arguments unpersuasive as they ignore a hearing officer’s broad authority to fashion appropriate relief.[17] Here, although I would not be considering a residential cost-share claim against DMH, as to do so would be violative of DMH policy, it is premature to disregard the possibility that Student may need ancillary services not currently provided – and separate from a residential placement- within the array of supports that can be provided by DMH and which are within the mandate and expertise of DMH to provide. If I find that any additional supports beyond those that are the responsibility of the District are necessary to ensure that Student will be able to access or benefit from her special education program and services, then without DMH, complete relief cannot be granted in the instant case.[18] At this early stage in the case, I have little information about the extent of Student’s needs, and a hearing on the evidence is necessary to determine what, if any, these additional supports may be. Further, as this matter has been determined to meet the standard for an accelerated hearing, administrative efficiency negates dismissal of DMH as a necessary party.
ORDER
The Department of Mental Health’s Motion is hereby DENIED.
So Ordered by the Hearing Officer,
/s/ Alina Kantor Nir
Alina Kantor Nir, Hearing Officer
Dated: September 6, 2024
[1] On September 5, 2024, after the Ruling on Department of Mental Health’s Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted was issued,Parents’ Counsel indicated via email that she had been planning to submit her opposition to DMH’s Motion that day and documented the reasons for Parents’ opposition in her email. The Hearing Officer agreed to allow Parents to file their opposition to DMH’s Motion, but noted that Parents’ pleading would not change the outcome of the Ruling. As such, this Corrected Ruling documents Parents’ arguments.
[2] Although titled as a Motion to Dismiss for Failure to State a Claim For Which Relief Can Be Granted, the
Department’s Motion was construed by the District as a motion to dismiss the Department as a party-
defendant.
[3] See BSEA Hearing Rule VI D.
[4] The information in this section is drawn from the parties’ pleadings and is subject to revision in further proceedings.
[5] These are taken verbatim from Parents’ Hearing Request, except that typographical errors have been corrected for ease of reading.
[6] BSEA Hearing Rule I(J).
[7] MGL c. 71B, s. 3; see also 603 CMR 28.08(3) (regulatory language similar to above-quoted statutory language).
[8] See, e.g., Ugo v. Westford Public Schools, BSEA # 16-07922 R2 (Reichbach, 2016); In Re Stoughton Public Schools, Department of Developmental Services and Department of Mental Health, BSEA #14-06800 (Crane, 2014); In Re Lexington Public Schools, BSEA #13-05048 (Figueroa, 2013).
[9] In Re: Plymouth Public Schools (Ruling), BSEA # 06-2584 (Crane, 2006).
[10] In Re: Boston Public Schools District, BSEA #02-4553 (Figueroa, 2002).
[11] In Re: Stoughton Public Schools, Department of Developmental Services, and Department of Mental Health, BSEA #14-06800 (Crane, 2014).
[12] See, e.g., In Re: Southern Berkshire Regional School District, BSEA #03-2013 (Byrne, 2003); In Re: Brockton Public Schools District, BSEA # 02-0310 (2002, Figueroa); In Re: Medford Public Schools, BSEA #01-3941 (Crane, 2001).
[13] The 2019 Guidance may be found at https://www.mass.gov/doc/19-02-dmh-child-youth-and-families-division-residential-intervention-policy-effective-october/download.
[14] BSEA Hearing Rule I(J).
[15] M.G.L. c. 71B, § 3.
[16] Parents request that
“the Hearing Officer reserve opinion for the moment and require that DMH, for its part, be required to further substantiate at the scheduled due process hearing DMH’s unsubstantiated assertion that the policy upon which they rely has been renewed following annual review within the past one (1) year, and that unambiguous supplement polic(ies) exist upon which the hearing officer may rely to determine whether and to what extent DMH’s policy is even enforceable. If, following hearing, the Hearing Officer finds the DMH policy to have not been renewed within the past one year, and/or if the Hearing Officer deems such policy to be sufficiently ambiguous and without clear criteria for a consistent application of the same, Parents request that the Hearing Officer find that policy to be unenforceable, and find that BSEA may indeed authorize cost-share between the District and DMH.”
[17] M.G.L. c. 71B, § 3; see also School Comm. of Burlington v. Department of Ed. of Mass., 471 U.S. 359, 363(1985) (relying on 20 U.S.C. § 1415(i)(2)(C)(iii)); see also Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 244, 129 S. Ct. 2484, 2494, 174 L. Ed. 2d 168 (2009) (“§1415(i)(2)(C)(iii) authorize[es] hearing officers as well as courts to award reimbursement notwithstanding the provision’s silence with regard to hearing officers”).
[18] See In Re: Plymouth Public Schools, BSEA #06-2584 (Crane, 2006); see also In Re: Lunenburg Public Schools and Department of Mental Health, BSEA #05-0799 (Byrne, 2004).