Lowell Public Schools – BSEA #03-2637
COMMONWEALTH OF MASSACHUSETTS
BUREAU OF SPECIAL EDUCATION APPEALS
IN RE: Lowell Public Schools
DECISION ON JOINDER MOTIONS OF LOWELL PUBLIC SCHOOLS
This decision is rendered pursuant to M.G.L. Chapters 15, 30A and 71B; 20 U.S.C. §1400 et seq .; 29 U.S.C. §794; and the regulations promulgated under each of these statutes.
HISTORY/STATEMENT OF THE CASE
Student, 13 years old, and his family reside in Lowell, MA. Student is diagnosed with both Pervasive Developmental Disorder (PDD) and Bipolar Disorder (BP) and is on multiple medications for these disorders. Student attended Lifeways School, an out of district private day school, funded by the Lowell Public Schools (Lowell) from June 2001 until August 2002. Since August 22, 2002 Student has been hospitalized in the Youth Treatment Center at Hampstead Hospital in Hampstead, New Hampshire (HH). On September 13, 2002 HH’s treatment team presented its recommendations for a residential placement for Student to Lowell. On September 25, 2002 Parent requested a team evaluation and team meeting to address this change in his educational needs and the risk of hospitalization exceeding 60 days. Lowell convened a team meeting on November 5, 2002 but was unwilling to offer a residential placement and continued to offer the Lifeways School day placement. On December 17, 2002 Parent requested the initiation of formal hearing procedures and a pre-hearing conference, and an initial hearing date was set for January 8, 2003. Lowell’s attorney requested and Parent’s attorney consented to the January 8, 2003 date being utilized for a conference call, which was done. A pre-hearing conference was scheduled for and took place on January 30, 2003 at which time hearing dates were scheduled for March 3, 5 & 6, 2003 and preliminary issues of document exchange and potential joinder were discussed.
On February 14, 2003 Lowell filed Motions To Join: 1) the Massachusetts Department of
Social Services (DSS); 2) the Massachusetts Department of Mental Retardation (DMR); 3) the Massachusetts Department of Education (DOE); and 4) Hampstead Hospital (HH). DSS, DMR and DOE all filed motions to extend time for filing responses and then all filed Motions In Opposition To Joinder. HH did not respond in any manner. Parent opposes joinder of HH. Regarding DSS, DMR and DOE Parent does not oppose joinder but also asserts that complete relief can be granted without joinder. A Pre-Hearing Conference/Motions Session was scheduled for and took place on March 3, 2003 which would have been the first day of hearing.1 Resolution was not possible and the parties/potential parties presented oral arguments in support of their motions or opposition thereto.
The Hearing Officer has considered all of the oral and written arguments submitted by the parties/potential parties to this appeal, as well as all written pleadings, motions, oppositions, statements of fact, memoranda, briefs and written exhibits submitted in rendering this DECISION .
SUMMARY OF POSITIONS
Lowell’s position is that DSS, DMR, DOE and HH should all be joined as parties to this appeal. Lowell argues that Student does not require a residential program in order to provide him with a free and appropriate public education (FAPE) and that the Lifeways School day placement provides Student with FAPE. Lowell contends that Student requires a residential placement for non-educational reasons and that such residential program should be provided by a state human service agency.
Lowell argues that DSS should be joined because Parent formally sought voluntary services from DSS in November 2000 and informally sought voluntary services from DSS for the purpose of seeking residential services in the fall of 2002 but was denied services by DSS. Lowell contends that DSS should have provided services/should provide services to Student including a residential placement to address his non-educational residential needs.
Lowell argues that DMR should be joined because Student is a client of DMR and receives family support and case management services but not residential services, for which Lowell believes DMR should be responsible. Lowell also argues that Student should be a participant in the DMR/DOE Community Residential/Education Project (CREP) and that under CREP, DMR should provide a residential program or group home for Student for non-educational reasons.
Lowell argues that DOE should be joined to address to what extent the DMR/DOE CREP could play in providing for Student’s non-educational needs. Lowell contends the CREP is designed to provide less restrictive alternatives to residential placements such as to fund a group home for non-educational reasons.
Lowell argues that HH should be joined because HH will not release Student to attend Lowell’s day school placement because HH believes that he requires a residential placement. Lowell also contends that the educational component at HH is not appropriate for Student; is causing regression and harm to Student; and that HH should be held responsible for such regression/harm.
Parent does not oppose the joinder of DSS, DMR or DOE to the BSEA Appeal. However, Parent maintains that complete relief can be granted through Lowell and that this Appeal can be heard without the involvement of DSS, DMR or DOE. Parent asserts that residential services are both clinically and educationally related and, therefore, residential services are necessary for the provision of FAPE to Student. Parent does oppose the joinder of HH. Parent asserts that HH treatment staff has provided medical opinions regarding the clinical appropriateness and viability of Student’s proposed return to a day placement but that the ultimate decision to reject the proposed return to the day placement was made by Parent. Parent also questions the legal basis for joinder of an in-patient hospital provider.
DSS argues that joinder is inappropriate because complete relief can be afforded without DSS’s joinder and there are no DSS regulations, rules or policies that could be invoked to compel DSS to provide the services sought by Lowell. DSS argues that it has neither care nor custody of Student and has no knowledge or expertise to bring to this matter. DSS contends that even if Parent requests DSS to provide residential and/or other services, pursuant to M.G.L. c. 119 s. 23 ¶ A and 110 CMR 4.10 DSS must agree to provide services. Further, the decision to place the child out of the home is within the discretion of DSS, as is the decision of where to place the child. i. e., foster care, specialized foster care or some type of DSS residential placement.
DMR also opposes Lowell’s Joinder Motion. Student has been a DMR client since 1994. Pursuant to 115 CMR 6.05, DMR states that Student, being under 18 years old with a developmental disability, is eligible for family support services. Under 115 CMR 6.07(2) Prioritization for Supports to Children and Families it is provided that:
The Department seeks to provide certain supports to the families of children with developmental disabilities to enable the family to stay together to be contributing members of their communities. These supports are intended to assist, not to replace or substitute for, the child’s family. The responsibility to provide a home and parental care and guidance rests with the child’s parents or, in the event of their absence or incapacity, with the public agency responsible for ensuring the care and protection of children generally, i.e., the Department of Social Services or it successor.
DMR contends that family support services include such things as a personal care attendant, respite care, intensive care management and behavioral supports but not residential placements.
DOE also opposes joinder. DOE states that Student does not receive any services from the DMR/DOE CREP; that participation in the DMR/DOE CREP is solely within the discretion of DMR; that DOE merely provides the funding for the DMR/DOE CREP; that there are no entitilements to services under CREP; that participation in CREP is specifically not within the jurisdiction of the BSEA; and that the BSEA has no authority to order that services be provided to Student pursuant to CREP.
Based upon all of the written materials submitted; the oral arguments presented; and a review of the applicable law, I conclude that Lowell’s Motions To Join DMR, DOE, DSS and HH must be DENIED .
My analysis follows.
Pursuant to BSEA Hearing Rule 1(F) joinder is appropriate 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.
Pursuant to M.G.L. c 71B s.3, as amended by chapter 159, section 162 of the Acts of 2000, as codified in 603 CMR 28.08(3):
Bureau of Special Education Appeals; Jurisdiction . In order to provide for the resolution of differences of opinion among school districts, private schools, parents, and state agencies, the Bureau of Special Education Appeals….shall conduct mediations and hearings to resolve such disputes. The jurisdiction of the Bureau of Special Education Appeals over state agencies, however, shall be exercised consistent with 34 CFR 300.142(a). The 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 Social Services, the Department of Mental Retardation, the Department of Mental Health, the Department of Public Health, or any other state agency or program, in addition to the IEP services to be provided by the school district.
The issue of joinder of the other state agencies has been addressed with increasing frequency
by the BSEA, with joinder sometimes being granted and sometimes being denied based upon the specific facts and circumstances of the particular case. Based upon the facts and circumstances presented in this case, I find that the standards for joinder under BSEA Hearing Rule 1(F) have not been met. Parent/Student, DMR and DSS all argue that it is Lowell’s responsibility to provide a residential educational program for Student in order for Student to receive FAPE under state and federal special education law. Parent/Student, DMR, DSS, and DOE all argue that complete relief can be obtained without the joinder of DMR, DSS, and DOE. . (See STATEMENT OF POSITIONS , above). Clearly, a BSEA decision finding that Student requires a residential program in order to address Student’s special education needs so as to provide him with a free and appropriate public education, and an order directing Lowell to provide such residential program does not require the joinder of DSS, DMR, or DOE. Conversely, a BSEA decision finding that Student required something less than a residential placement to address his special education needs so as to provide him with FAPE (i.e., Lowell’s proposed out-of-district day school program either with or without extended day and/or extended year services) and an order directing Lowell to provide such placement/services also does not require the joinder of DSS, DMR or DOE. Student/Parent could have joined or supported Lowell’s Joinder Motions but did not. Student/Parent could have brought their own motion to join DSS, DMR, or DOE but did not. Therefore if, after the BSEA Decision, Student/Parent believes Student requires any additional services they may, if they wish, pursue such services directly from DSS and/or DMR.
Further, based upon 603 CMR 28.08(3) the Hearing Officer may determine, in accordance with the rules, regulations and policies of the respective agencies, that services shall be provided in addition to the IEP services to be provided by the school. Based upon the facts presented in this particular case, such rules, regulations and policies of DSS, DMR and DOE demonstrate that joinder of these agencies would serve no productive purpose.
With regard to DMR, based upon the facts presented in this case, the rules, regulations, and policies of DMR demonstrate that joinder of DMR would serve no productive purpose. Lowell points to In re: Medford Public Schools, BSEA #01- 3941 and 7 MSER 82 (2001) in which a BSEA Hearing Officer ordered joinder of DMR. This Hearing Officer also notes In re: Fitchburg Public Schools, BSEA #02-0038 and 8 MSER 141 (2002) in which a BSEA Hearing Officer ordered joinder of DMR. However, in both of these cases the Students were over 18 years old and, pursuant to 115 CMR 6.03, DMR had found both Students generally eligible for adult services from DMR, including the eligibility for residential service from DMR. Further, I note that in both the Medford and Fitchburg cases, parents and/or students supported the joinder of DMR. Such cases and facts are clearly distinguishable from the instant case where Student is under the age of 18 age and has much more limited eligibility for family support services pursuant to 115 CMR 6.05. (See also 115 CMR6.07(2) cited under DMR’s Position, above). Indeed, in 3 other recent BSEA cases – In re: Haverhill Public Schools, BSEA # 02-0567 and 7 MSER 268 (2002); In re: Auburn Public Schools, BSEA #02-0983 and 8 MSER 143 (2002); and In re: Brockton Public Schools, BSEA #02-3337 and 8 MSER 208 (2002) – BSEA Hearing Officers denied joinder of DMR where Students were under 18 years of age and were only eligible for the more limited family support services from DMR but not generally eligible for the more extensive over age 18 adult services from DMR. The facts in Brockton, Haverhill and Auburn are most clearly analogous with the situation in the instant case.2
With regard to DSS, Parent/Student have had no involvement with DSS other than a formal application and rejection of DSS services in November 2000; and an informal, oral parental request for DSS voluntary residential services in the fall of 2002 that DSS advised were not available and where no formal application was ever filed by Parent. (See Parent Documents; Lowell Documents.) DSS has no court ordered legal custody of Student and there is no open case regarding Student or
Parent. DSS has never agreed to provide any DSS services to Student. If DSS did provide services to Student, the decision whether to place Student out of the home and, if so, where to place Student is solely within the discretion of DSS. ( See M.G.L. c. 119 s. 23 ¶ A and 110 CMR 4.10.) Finally, pursuant to the Interim Policy For Voluntary Out Of Home Placements For Students With Disabilities (Lowell Documents; Oral Arguments of DSS/DMR), even in those situations where DSS does place students when there are no child protection or parenting concerns, such placements are provided subject to available funding. Currently there is no such available funding. Based upon the facts of this case, whatever I may think of DSS’ inaction and/or refusal of involvement in this situation, I conclude that 603 CMR 28.03 (3) does not contemplate a BSEA Hearing Officer ordering DSS to accept a child for DSS services.
With regard to DOE, Lowell seeks DOE’s joinder to address to what extent the DMR/DOE CREP could play in providing for Student’s non-educational needs. However, based upon the DMR/DOE CREP, as amended on December 9, 2002 (DOE Exhibit -1) Section V. Implementation provides at #2:
A Student’s participation in the DOE/DMR Project is discretionary on the part of DMR and is determined solely through the application process. Participation in the Project may not be the subject of a hearing or appeal pursuant to G.L. c. 71B, or any other federal or state special education law. The Bureau of Special Education Appeals shall have no jurisdiction or authority to order DMR to approve a Student for Project participation, or to order DMR to provide a Student participating in the Project with particular supports or services.
Based upon the above, I have no jurisdiction or authority to do what Lowell requests.
With regard to HH, Lowell has cited no legal basis nor is the Hearing Officer aware of any legal basis which empowers a BSEA Hearing Officer to join a private hospital or to issue any order against a private hospital. 603 CMR 28.08(3) extends BSEA jurisdiction beyond Parents, Local Education Authorities and the State Education Authority to other state agencies such as DSS, DMR, the Department of Mental Health (DMH) and the Department of Public Health (DPH) under certain circumstances. I find no authority under 603 CMR 28.08(3) that would extend BSEA jurisdiction to private hospitals.
Lowell’s Motions To Join DMR, DSS, DOE and HH are hereby DENIED .
By the Hearing Officer,
Dated: March 25, 2003
Student has a sibling with similar issues; with a separate appeal pending before the BSEA; and with joinder motions filed against all of the entities listed above. For administrative efficiency, the Pre-Hearing Conference/Motions Session encompassed both students and was presided over by the Hearing Officers assigned to each case.
I also not the documentation from both Parent and DMR that Student’s sibling has been/is a member of the DMR/DOE CREP and that Parent has been offered the opportunity for Student to also participate in CREP. However, Parent desires to pursue a special education residential program for Student that is inconsistent with the entire purpose of the DMR/DOE CREP which is to help ease students out of residential education placements or to prevent the necessity of students entering a residential educational placement in the first place.