Lowell Public Schools, Chelmsford Public Schools, and Massachusetts Department of Education – BSEA #02-0735



<br /> Lowell Public Schools, Chelmsford Public Schools, and Massachusetts Department of Education – BSEA #02-0735<br />

In re: Lowell Public Schools, Chelmsford Public Schools, and Massachusetts Department of Education

BSEA #02-0735

DECISION

This decision is rendered pursuant to 20 USC 1400 et seq . (Individuals with Disabilities Education Act), 29 USC 794 (Section 504 of the Rehabilitation Act), MGL chs. 30A (state administrative procedure act) and 71B (state special education law), and the regulations promulgated under said statutes.

A hearing on this matter was held on March 19, 2002 at the Bureau of Special Education Appeals. At the request of the parties, the record remained open until April 18, 2002, for receipt of closing arguments. Further, at the request of the Hearing Officer, the Department of Education (DOE) submitted an affidavit on April 17, 2002, and such is entered as DOE’s exhibit number 1. On April 17, 2002, Attorney Nuttall submitted an affidavit summarizing his conversation with a potential witness who refused to testify; this is entered as Chelmsford Public School’s exhibit number 10.

Persons present for all or part of the proceedings were:

Carol Fredette Carol Fredette Special Education Administrator, Chelmsford Public Schools

Thomas Nuttall, Esq. Attorney for Chelmsford School Committee

Thomas Shea Private Investigator

Rosemarie Folk Out of District Liaison, Chelmsford Public Schools

Raymond James Clinical Director, Kolburne School

Janice Adie Janice Adie Special Education Administrator, Lowell Public Schools

Michael Ortiz, Esq. Attorney for Lowell Public Schools

Debra Comfort, Esq. Attorney for the Massachusetts Department of Education

Darlene Curley-Sullivan Court Stenographer

ISSUES

1. Whether DOE’s assignment to the Lowell Public Schools (Lowell) for fiscal responsibility for Student’s educational placement at the Kolburne School (Kolburne), is deemed, by a preponderance of evidence, to be correct pursuant to its regulations, or whether Chelmsford Public Schools (Chelmsford) is fiscally responsible.

2. If DOE’s assignment is incorrect, and Chelmsford is deemed responsible, whether Chelmsford’s fiscal responsibilities span back to August of 1997.

The above-stated issues require an answer to a simple question: where did Mother reside prior to moving out-of-state? Arriving at the answer, however, is not so simple, as all parties would agree.

Mother did not reside somewhere in the usual sense of owning or leasing a home, providing a home for her son, receiving mail at her home, receiving utility and telephone bills, etc., etc.. Rather, Mother resided with other people, while her now 21 year-old son, in DSS custody, resided at Kolburne, a Chapter 766 approved private school. Thus, concrete evidence is sparse, and the relevant witnesses provided conflicting affidavits. DOE wrestled with the facts provided them over time, issuing a sequence of decisions, first finding Mother’s last verifiable residence to be in the city of Chelmsford, then in the city of Lowell, then Lowell again1 , then Chelmsford, and finally, Lowell. These findings led DOE to assign fiscal responsibility for Student’s Kolburne education first to Chelmsford, then to Lowell, then to Chelmsford, and finally, on July 11, 2001, to Lowell2 . It is the July 11, 2001 Lowell assignment that was appealed to the Bureau of Special Education Appeals on August 5, 20013

LOWELL’S POSITION

Mother resided in the Town of Chelmsford from before August of 1997 up until February of 2000 when she moved to New Hampshire. Fiscal responsibility for Students’ education rests with the Town of Chelmsford, and Chelmsford should be ordered to finance Student’s education from August of 1997 through and up to date. Lowell should be reimbursed for any costs paid by Lowell during that period.

CHELMSFORD’S POSITION

Mother resided in the Town of Lowell, and resided in the Town of Chelmsford for only two months in the summer of 1997. She then moved back to the Town of Lowell before moving to New Hampshire. Lowell is fiscally responsible for Student’s education throughout Student’s stay at Kolburne. Chelmsford further states that the Hearing Officer should limit the time period at issue to the 2001 – 2002 fiscal year, that being the time period covered by DOE’s July of 2001 assignment, now before me. Chelmsford argues that the special education statute requires that school districts be provided sufficient notice before they are fiscally responsible for out of district placements4 , and that consideration of time before the 2001 – 2002 school year would violate the intent of the law.

THE DEPARTMENT OF EDUCATION’S POSITION

The last verifiable residence before moving to New Hampshire is in the Town of Lowell. Lowell’s assertion that she resided in the Town of Chelmsford is not verifiable. Accordingly, Lowell is fiscally responsible for Student’s education throughout Student’s stay at Kolburne.

STATEMENT OF FACTS

1. In January of 1995, while in the custody of DSS, Student was placed residentially at the Kolburne School, (Kolburne) a Chapter 766 approved private residential school in New Marlborough. His IEPs called for 502.5 prototype placements; Lowell and the Department of Social Services (DSS) cost-shared this placement through October of 1998 when Lowell stopped payment. Student continues his education at Kolburne. (L-6, C-7, L-8, C-9)

2. In 1997, Mother resided with her sister (Sister) in Lowell. Sister then moved to 6 Sheila Street, Chelmsford. (L-10, L-12)

3. Mother signed an affidavit stating that she last resided in Lowell at 64 Lilley Avenue, that she left that residence in late 1997, that she moved to Sister’s Chelmsford home and lived there from late 1997 – February of 2000, and that she then moved to Nashua, New Hampshire. (L-10, Mother’s November 1, 2000 affidavit)

4. Sister similarly confirmed that Mother resided with her in 1997 and then moved to Nashua, New Hampshire. However, fearing the loss of public housing benefits, she was unwilling to provide an affidavit stating as such. (L-9, Hickey’s September 7, 2000 affidavit) (Note that Sister says that Mother moved from her home to New Hampshire but doesn’t say when, and Mother says she moved to New Hampshire in 2000. (L-9, L-10)) Mother later retracted her statement that she last resided with Sister, and stated that she resided there for only the two summer months in 19975 . She stated that she actually moved back to Lowell, living with a friend until the fall or winter of 19975 , although she could not remember the name of the street. Then she moved to Nashua, New Hampshire, living with her boyfriend at the Country Barn motel for five – six months, and then moved to a boarding house at the Temple Street Inn and stayed there until August 2, 2001. She further stated that her August 18, 1997 Massachusetts ID card listed her sister’s Chelmsford address, but she was not residing there. (L-11, C-1, C-10) It should be noted that this ID card is blank as to Mother’s residence. (L-14, L-15)

5. On March 26, 2001, Sister retracted her September of 2000 statement to Mr. Hickey, and signed an affidavit that Mother resided with her only for the two months in the summer of 19975 . (L-12, C-3)

6. At the January 5, 1998 Kolburne/DSS meeting, Ms. Rubiko, Mother’s DSS social worker, stated that Mother’s current address was at her sister’s home in Chelmsford. (L-21) On February 21, 1998, Ms. Rubico logged in a phone call from Mother saying that she had a fight with her sister and would be moving out of her Chelmsford home soon, however she refused to go to the school department and fill out the change-of-address form. (L-20) On March 6, 1998, Ms. Rubico informed Chelmsford that Mother had moved to Chelmsford in September of 1997, that she had a son in DSS’ legal custody, that her son attends Kolburne in New Marlborough via a cost-share agreement with Lowell, and that Chelmsford’s educational responsibilities for her son would begin after June 30, 1998. (L-19, Fredette)

7. On March 2, 1998, Student’s grandmother reported to DSS that Mother had moved to her sister’s Chelmsford home in or around August of 1997. (I.e., six months prior to March of 1998.) (L-6, C-7)

8. On March 13, 1998, Chelmsford requested from DSS – but did not receive – Student’s educational records as well as Mother’s Chelmsford address and telephone number. (L-18, Fredette) Chelmsford was thus unable to verify Mother’s address in Chelmsford, and so notified DOE. (Fredette)

9. In June of 1998, a Kolburne worker spoke with Mother by phone at the Chelmsford home. Mother reported to her that “she sometimes stays with her sister in Chelmsford, sometimes with her boyfriend and others in Manchester, New Hampshire, and sometimes with her step-mother in Lowell, where she receives her mail.” (L-6, C-7)

10. In October of 1998, believing that it was not responsible for Student’s Kolburne tuition, Lowell stopped payments to Kolburne. (L-6, C-7)

11. On February 10, 1999, Kolburne provided Lowell with Mother’s Chelmsford address (obtained from her son), and requested that Lowell obtain Mother’s consent to perform evaluations. (L-17) On February 19, 1999, Kolburne mailed Mother an evaluation consent form to her sister’s Chelmsford address. (L-16)

12. On March 10, 1999, Lowell sought a DOE assignment to Chelmsford6 . (C-5)

13. On March 29, 1999, DOE assigned LEA responsibility to Chelmsford6 , based on Lowell’s statement that Mother was currently residing in Chelmsford. (L-8, C-9 )

14. On April 14, 1999, Chelmsford wrote DOE , stating that it was unable to obtain the necessary documentation that Mother was currently residing in Chelmsford. It stated that Ms. Rubico, DSS Social worker, had informed it on February 2, 1999, that she had no proof of Mother’s Chelmsford address and “had heard that [Mother] had moved to New Hampshire”. Further, Chelmsford reported a phone conversation wherein Mother’s sister stated that “[Mother] had not lived at 6 Sheila Avenue in over a year and that when she did live there, it was for only a brief period of time. … that [Mother] had lived in New Hampshire during the past year and has just recently moved back to Lowell…” (L-7, C-8)

15. On September 24, 1999, DSS reported to DOE (and copied to Chelmsford) that it was unable to verify Mother’s address since she left Lilley Ave in Lowell. Kolburne reported that Student did not know where his mother was, and when she called him, it was either from [the Chelmsford home] or a pay phone. (L-6, C-7)

16. On November 9, 1999, DOE assigned Lowell as being responsible for Student’s education, as Mother’s last verified address was Lilley Avenue in Lowell, based on DSS’ last verified address, and the lack of any other verifiable address.(L-5, C-6)

17. On September 7, 2000, Lowell requested a re-determinatio n of this Lowell assignment, based on its submission of an affidavit from Lawrence Hickey reporting that Mother resided with Sister in Chelmsford prior to moving out of state. DOE made attempts to verify this, but was unable to do so. Thus, the November 1999 Lowell assignment was reconfirmed on October 12, 2000 . (L-4, C-5)

18. On November 5, 2000, Lowell appealed DOE’s assignment to the BSEA, (BSEA case #01-2297) and soon thereafter, provided DOE with Mother’s affidavit stating that she resided in Chelmsford from 1997 – February 2000, when she relocated to New Hampshire. (L- 10 ) On January 29, 2001, DOE corrected its assignment and assigned Chelmsford as the responsible LEA , based on Mother’s affidavit stating that she resided with Sister in Chelmsford from 1997 – February of 2000 when she moved out of state. “We have now determined that since [Mother’s] Chelmsford address is verifiable and it was her last Massachusetts residence, [Chelmsford] is fiscally and programmatically responsible for [Student’s] special education program.” (L-3, C-4) On February 27, 2001, Lowell withdrew its hearing request. (L-2, L3) Administrative notice is taken showing BSEA case #01-2297 was closed March 2001.

19. On March 27, 2001,Chelmsford requested a reassignment of responsibility based on an affidavit it submitted from Sister, stating that with the exception of a brief period in the summer of 19975 , Mother did not reside with her in Chelmsford. (L-12, L-2, C-10)

20. On July 11, 2001, DOE’s legal office reviewed the case and determined that the Chelmsford assignment should be changed to Lowell , based on a finding that the contradictory affidavits from Mother and Sister rendered them unreliable. Thus, DOE determined that it was impossible for DOE to determine whether and when Mother lived in Chelmsford. (L-2)

21. On August 6, 2001, Lowell appealed DOE’s July 11, 2001 assignment determination to the BSEA.

FINDINGS AND CONCLUSIONS

I find that by a preponderance of the evidence, DOE’s July 11, 2001 assignment of fiscal responsibility to Lowell was incorrect; rather, Chelmsford is fiscally responsible. Such is based on a review of the evidence available to DOE as well as additional evidence submitted into the hearing record. That is, a preponderance of the evidence supports Lowell’s claim that a) Mother resided with Sister in Chelmsford since the summer of 1997 through February of 2000, and b) Mother moved out of state in or around February of 2000, and c) Mother’s last known residence prior to moving out-of-state was at Sister’s home in Chelmsford. I find, however, that DOE’s assignments are prospective, and only that assignment appealed to this Bureau, – the July 11, 2001 Lowell assignment – is retroactively reversed. As a result of this, I find that Lowell’s fiscal responsibilities continue up to March 29, 1999, and resume again during the November 9, 1999 through January 29, 2001 period. Chelmsford’s fiscal responsibilities begin in March 29, 1999 through November 9, 1999, and again from January 29, 2001 to date. My reasoning follows.

MOTHER’S LAST KNOWN RESIDENCE

Lowell was persuasive, as detailed in its brief’s thorough analysis of the documentary as well as testimonial evidence, that Mother resided in Chelmsford from at least the summer of 1997, that she moved to New Hampshire around February of 2000, and that the Chelmsford address was the last known residence prior to moving out of state.

Among the evidence, the following supports Lowell’s position:

· Mother clearly moved from 6 Lilley Avenue in Lowell. (L-2 through 12, and 14 through 16)

· Mother clearly moved to 6 Sheila Ave. in Chelmsford for at least two months during the 1997 summer, but by a preponderance of the evidence, she resided there until February of 2000. (See L-6, C-7 wherein Grandmother reports that Mother moved to Chelmsford in or around August 1997; L-9 wherein Sister told Mr. Hickey that Mother resided with her in 1997; L-10 wherein Mother stated that she moved to Sister’s in late 1997; L-11, C-1 wherein Mother stated that she resided with Sister for the two summer months in 1996, (and later corrected to be 1997); L-12 wherein Sister stated that Mother stayed with her for the two summer months of 1996 (later corrected to be 1997); C-10 wherein Attorney Nuttall reports that Sister confirmed that Mother’s summer stay was in 1997, not 1996.)

· Mother resided at 6 Sheila Avenue on or around February of 1998. (See L-20 wherein Ms. Rubico recorded her February of 1998 telephone call with Mother when Mother stated that she would be moving out of her sister’s home. It is credited as reliable, for Ms. Rubico is a disinterested party.)

· Mother resided at 6 Sheila Avenue on or around April of 1998. (See L-7, C-8 wherein Sister informed Ms. Fredette in April of 1999 that Mother had “not lived” at 6 Sheila Avenue in over a year. Sister’s statement is credited as reliable, for it was stated in the context of her attempt to deny that Mother was currently residing there. Further, it is an admission by the same person who allegedly had an interest in denying that her sister resided with her.)

· Mother resided at 6 Sheila Avenue on or around June of 1998 (See L-6, C-7 wherein Mother confirms that she stays with her sister in Chelmsford, although she also is sometimes with her friends in New Hampshire and some times with her step-mother in Lowell)

· Mother resided at 6 Sheila Avenue or around September of 1999. (L-6, C-7, Kolburne staff reported that Mother calls Student either from Sister’s residence or a pay phone.)

· Mother moved to New Hampshire in or around February of 2000. (L-10)

DOE and Chelmsford were unpersuasive that the record lacks verifiable evidence of Mother’s residence in Chelmsford. It may be that establishing current residency has always been difficult. However, in retrospect, the preponderance of the evidence supports a determination that her then current residence between 1997 and 2000 was in Chelmsford. Further, the preponderance of the evidence supports her last known residence prior to moving to New Hampshire in February of 2000 to be in Chelmsford. It is true that DOE was provided contradictory affidavits from Mother and Sister, and therefore, that they cannot be credited. However, when those affidavits are analyzed in conjunction with corroborating evidence, it is clear that Mother did in fact reside in Chelmsford with Sister. It should be noted that, because DOE’s conclusion was based on significantly less information than is in evidence, giving deference to DOE’s finding of residence, is not appropriate. Rather, DOE’s finding is one piece of evidence considered by the Hearing Officer in rendering a determination of last known residence. The information available to the Hearing Officer, not available to the DOE is plentiful.7

Chelmsford was unpersuasive that Mother returned from Chelmsford back to Lowell prior to her move out-of-state; vague assertions of such do not fulfill the preponderance of evidence standard of proof for determining residence. Mother may, indeed, have stayed with friends or stepmother from time to time. (See L-6, C-7) However, given the plethora of information that Mother resided with Sister and that agencies’ contact with mother were at Sister’s, little credence is given to the few vague assertions of her temporary move to Lowell. The assertion that Mother received mail in Lowell is not credited, for a) no address is provided, and b) receiving mail is not necessarily indicative that Mother actually resided there. (L-4, C-5, L-6, C-7, L-7, C-8) Further, Mother’s and Sister’s statements that Mother returned to Lowell prior to leaving the state, are not credited, for no address was provided, and given the contradictions and unreliability of their affidavits, without any reliable corroborating evidence, they can not be credited.8 (L-11, C-1, L-12) Rather, the evidence supports a finding that Mother moved from Chelmsford to New Hampshire, in or around February of 2000.

RETROACTIVITY OF CHELMSFORD’S FISCAL RESPONSIBILITIES BASED ON DOE’S ASSIGNMENTS AND THIS BSEA DECISION

Having determined that Mother resided in Chelmsford at least by the summer of 1997, that she moved out-of-state in or around February of 2000, and that the Chelmsford residence was her last known residence prior to her moving out of state, the question remains as to how far back in time Chelmsford’s responsibility lies. Several considerations apply.

First, Chelmsford is persuasive, that pursuant to the “move-in” statute,9 Lowell retains fiscal responsibility for the 1997 – 1998 school year, given that Mother’s move-in occurred sometime during the beginning of the 1997 summer; Chelmsford’s responsibilities thus would not begin before the 1998 – 1999 school year.

Second, it appears that by regulation, DOE’s assignments are prospective, and usually do not retroactively reverse previous assignments. The regulations 603 CMR 28.202.1(e), (e)(i) and (ii), as well as by its successor, 603 CMR 28.03 (4)(f), (g) and (h) guide such opinion. The applicable provisions state:

The Department of Education shall assign a … school district to be responsible for providing special education to children in a living situation described in 202.1(c) or (d) who have neither a father, mother nor guardian living in the Commonwealth, or who have neither a father, mother or guardian whose residence can be determined in the Commonwealth…

The Department of Education shall use the following criteria to assign a … school district responsibility for the provision of special education…: the last known Massachusetts residence of the child’s … mother.. . Prior to moving from the Commonwealth …

Upon notification of responsibility for provision of special education to a child under this paragraph, the school committee shall immediately begin to provide such services … Until such notification, the school district that had been responsible for providing special education to such child under these regulations shall continue to be responsible.

603 CMR 28.202.1(e)

The successor regulation, section 28.03(4)(f), (g) and (h), effective January 1, 2001, replicates the above-quoted section 28.202.1(e) language, but includes some additional language:

(f) [When a mother’s residence or history is in dispute], the school district … requesting assignment shall be responsible to provide to the Department all required documentation to ascertain the … mother’s … residence.

(h) [DOE] shall notify in writing the assigned school districts, who shall be afforded the opportunity to present any additional information that would bear upon [DOE’s] determination … The assigned school district may seek review of [DOE’s] assignment with the Bureau of Special Education Appeals, provided such request for review is filed within 30 days of receipt of the Department’s assignment.

Unfortunately, these regulations are silent as to the retroactivity of any DOE reversal of its previous assignment decisions. However, given the regulations’ clear language that the previous school committee retains its responsibilities until the new assignment, and that upon notification of a new assignment, “the school district shall immediately begin to provide such services”, it reasonably follows that retroactive application would be inconsistent with this. Clearly, DOE is attempting to establish continuity and clarity midst frequently confusing fact patterns regarding assignments. (See 603 CMR 28.202.1(e)(ii)10 ) Its successor regulation sheds some light on the issue, but also raise more questions. It allows for a BSEA appeal of DOE’s assignment as long as that appeal is filed with the BSEA within 30 days of its decision. Nothing is said in regards to retroactivity, but it does evidence the need to provide LEAs protection against unlimited uncertainly as to their responsibilities. Similarly, disallowing retroactivity to DOE’s assignment reversals addresses the LEAs’ need for notice as to their fiscal responsibilities. Having said this, this successor regulation does seem to infer that DOE’s initial assignment notice is tentative, subject to further input from the school committee, and therefore, the final determination may call for a limited retroactivity. If this is so, it unfortunately sets no time limit for this further input, and therefore provides no limit to this period of retroactivity. As pointed out in Chelmsford’s brief, the legislators were mindful of the need for notice in budgeting for the out-of-district students’ educational costs; thus, the “move-in” statute ensuring the new LEA sufficient time to budget for that student. In the instant case, allowing retroactive assignment reversals would undermine this call for sufficient notice of major budgetary expenses.

One may question whether the fundamental principle in state and federal special education law, establishing LEA responsibilities based on residence, would require that the assignments be retroactive. See Walker Home for Children v. Franklin11 , 416 Mass. 291 (1993). Thus, if newer information regarding residence leads DOE to reverse its assignment, wouldn’t that assignment have to be retroactive in order that the LEA of residence be the responsible LEA? I think not. DOE’s assignments are administrative decisions made either when residency could not be determined, or when Mother had already moved out-of-state12 ; last known residence is the applicable criteria. Thus, the assignments are not called for when the residence is clear and can be established. If it were clear, then Walker would indeed apply. However, in some cases such as the instant one, DOE’s authority to administratively assign an LEA, is necessary in order to allow for the continuation of a child’s out-of-district education despite the absence of, or dispute regarding parental residence. See Board of Education v. School Committee of Amesbury, 16 Mass. App. Ct. 508 (1983). Thus, this is not a case about the then current residence – wherein Walker would apply – but rather, a determination of last known residence based on the preponderance of evidence.

Although DOE’s assignments are not retroactive, the question remains as to the retroactivity of this BSEA decision. Again, the regulations do not specifically address this. For several reasons, Lowell’s appeal of DOE’s July 11, 2001 assignment is limited to only that assignment, not the previous assignments. Such is based first, on the regulations’ call for stability in assignments, as described above. Secondly, Lowell already appealed DOE’s October 12, 2000 assignment, and could have, but failed to seek retroactivity while before the Bureau. Third, although only applicable since the effective date of the new regulations, the inclusion of the 30-day right to appeal a DOE assignment infers that the BSEA decision would be retroactive to that specific assignment date – in this case, July 11, 2001. For these reasons, the issue before me is whether DOE’s July 11, 2001 assignment was correct. Because I find that it was not, Chelmsford is responsible as of that July 11, 2001 date.

This conclusion that DOE’s assignments are prospective only, and that the Bureau’s decision is limited to the July 11, 2001 assignment, is supported by the equities in the instant case. That is, Lowell failed to request a re-determination of the November 9, 1999 Lowell assignments until September 7, 2000 – approximately ten months later. To allow retroactivity in such situation would certainly deny Chelmsford notice for purposes of establishing its budget. Further, its appeal of the October 12, 2000 Lowell assignment was addressed at a BSEA pre-hearing, and thereafter, the appeal was withdrawn. Although this does not include a final action via dismissal with prejudice, the equities should preclude a reopening of this October 12, 2000 Lowell assignment.

Based on the determination that Mother’s last known residence prior to moving out-of-state was in Chelmsford, and on a careful review of the relevant regulations, the DOE assignments, and the LEA requests for review of those assignments, I find that Lowell’s fiscal responsibilities continue up to March 29, 1999, and resume again during the November 9, 1999 through January 29, 2001 period. Chelmsford’s fiscal responsibilities begin in March 29, 1999 through November 9, 1999, and again from January 29, 2001 to date

ORDER

The parties shall fulfill their financial responsibilities regarding Student’s education at Kolburne, in accordance with this decision. Further by agreement of the parties, Chelmsford is to reimburse Lowell for its payments to Kolburne since the time of their agreement.

By the Hearing Officer,

___________________________

Sandra W. Sherwood.

Date:


1

DOE’s several findings of fiscal responsibility were made on March 29, 1999, November 9, 1999, October 12, 2000., January 29, 2001, and July 11, 2001.


2

The programmatic responsibility for Student’s education has rested with the Lee Public School District. (See L-8, C-9, C-9, DOE’s determination pursuant to 603 CMR 202.1(d))


3

In order to ensure that Kolburne’s tuition was paid, Chelmsford and Lowell entered into an agreement whereby Kolburne would be paid its tuition; the school district found ultimately responsible, will, by agreement, reimburse the other school district in accordance with its responsibilities.


4

See M.G.L. ch. 71B § 5, developed to address the fiscal uncertainty associated with the “move-in” of children requiring out of district programs..


5

Mother’s affidavit states 1996 as the year wherein she lived two summer months with Sister, however she later corrected this to 1997. (C-10)


5


5


6

As an aid to the reader, the LEA request for assignment review is italicized, and DOE’s assignment is made bold.


6


5


7

See Debra Comfort’s affidavit, DOE exhibit 1. Evidence not available to DOE in rendering its July 11, 2001 assignment includes: the direct testimony and cross-examination of Ms. Fredette, Ms. Folk, Mr. Shea, and Mr. James; L-11, C-1 (11/09/01 Affidavit from Grace Corado); L-14 (8/01/2001 Massachusetts Registry of Motor Vehicles License Inquiry); L-16 (2/19/99 letter from the Kolburne School to Mother); L-17 (2/10/99 Letter from Kolburne School to Lowell Public Schools); L-2, C-2 (2/21/98 DSS Dictation Report); and finally, L-2, C-2 (1/5/98 Kolburne School Parent/Agency Conference Report).


8

Attorney Nuttall reports Mother’s and Sister’s naming Fremont Street or Fletcher Street in Lowell, as being the last residence. However, they failed to provide a specific address, their statements are vague, and their previous affidavits prove them to be unreliable sources. Without corroboration, their statements can not be credited. (C- 10)


9

See MGL c. 71B, §5.


10

The successor regulation is 603 CMR 28.03(4)(h).


11

Walker addresses 28.202.1(c), whereas the instant case addresses 28.202.1(e).


12

Note that the language in 28.202.1(e) calls for assignments when there are no parents in state or when the parent’s residence cannot be determined. In the successor regulation 28.03(4)(f), the language calls for assignments when there are no parents in state or when the parent’s residence or history is in dispute . In either situation, DOE applies the last known residence criteria. Thus, where there is no dispute as to residence, but rather, a dispute about the legal ramifications of residence, these regulations do not apply, and the DOE assignments are not the vehicle for resolution. Rather, such dispute would call for a DOE legal opinion or for a BSEA decision, not an assignment as detailed in the regulation.


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